EVIDENCE
Professor Rosen | Washington University School of Law | Fall 2018
INTRODUCTION
(Rules 611, 614, 104, 1101(d), 103, and 105)
Rules do not require the trier of fact (normally a jury) to accept any piece of evidence as fact.
The Rules merely allow the trier of fact to hear or accept any piece of evidence as fact.
 The trier of fact determines the weight and credibility of evidence.
Presumption under the Rules is that the trier of fact should be allowed to see and hear evidence.
 The Rules are rules of inclusion.
The proponent of a piece of evidence chooses the Rule under which it is admitted.
The Rules allow the judge to control the trial and the admission of evidence.
If an attorney believes the judge has made an incorrect evidentiary ruling, they must make a
proper record of their objection to the ruling or courts of appeals will tend to ignore the issues.
TYPES OF COURTROOM EVIDENCE (Pg. 6-19)
“Evidence” means testimony, writings, material objects, or other things presented to the senses
that are offered to prove the existence or nonexistence of a fact.
 Evidence includes all the information given to the trier of fact during trial, except for
questions and statements made by the attorney and judges.
1. Oral Testimony (Pg. 7-9)
 Most trials feature oral testimony by witnesses speaking from the witness stand.
The witness takes an oath to testify truthfully, and then responds to questions
posed by attorneys representing both parties.
 Fact Witnesses: Fact witnesses are people who perceived facts related to the
lawsuit and testify about those facts.
 Expert Witnesses: Expert witnesses use specialized knowledge to interpret
evidence or explain it to the jury.
o Unlike eyewitnesses, expert witnesses do not need to have any firsthand
knowledge about the controversy in question—that is, they do not need to
have directly seen or perceived the events that underlie the litigation.
Many times experts simply review documents or data compiled by others
and apply their expertise to this secondhand information.
 Character Witnesses: Character witnesses offer information about the good or bad
character of a party or witness.
 Parties: Those individuals or organizations who oppose each other at trial—the
prosecutor and defendant in a criminal case, or the plaintiff and defendant in a
civil case.
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Victim: The entity against whom a crime was committed or who suffered
damages in a civil case.
2. Real Evidence (Pg. 9)
 Real evidence is any physical evidence that a party claims played a direct role in
the controversy.
 All real evidence must be authenticated—that is, the proponent must offer some
proof that the piece of physical evidence is what she claims it to be.
3. Documents (Pg. 10)
 Documentary evidence encompasses any type of writing or recording of
information.
4. Demonstrative Evidence (Pg. 10-11)
 Demonstrative evidence is sometimes physical but, unlike real evidence, is not an
object that played a role in the disputed events. Instead, parties create
demonstrative evidence to illustrate concepts or facts to the jury.
 Charts, tables, pictures, maps, and graphs are common types of demonstrative
evidence. Increasingly, lawyers use PowerPoint slides and computer simulations
as well.
 Parties may also stay a literal “demonstration” in the courtroom.
 Problems with demonstrative evidence:
o Recreation or imitation of some aspect of the controversy.
o Open to abuse: A party may recreate an item or interaction in a way that
misrepresents the true nature of what happened.
o May become overly dramatic or theatrical, diverting the jury’s attention
from more probative evidence in the case.
5. Stipulations (Pg. 12)
 If both parties agree on a fact, they can stipulate that the fact is true for purposes
of the litigation.
6. Judicial Notice (Pg. 12)
 If a fact is indisputably true, the trial judge can take judicial notice of the fact. To
support judicial notice, the fact must either be “generally known” or “accurately
and readily determined” by consulting an unimpeachable source.
Photographs and Videos (Pg. 12-13)
 Photos and videos do not constitute their own category of evidence; depending on the
context, they should be classified as either real evidence or demonstrative evidence.
 These media frequently appears as demonstrative evidence because parties create them
for trial to illustrate an aspect of the dispute.
 If a photo or video depicts the events of a controversy directly, it constitutes real
evidence.
o Real evidence is more readily admissible than demonstrative evidence.
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Circumstantial Evidence (Pg. 15-18)
 Circumstantial evidence is any evidence that requires the jury to make an inference
connecting the evidence with a disputed fact. Direct evidence, in contrast, requires no
inferential bridge; it directly establishes a contested fact.
 In actuality, circumstantial and direct evidence are opposite ends of a spectrum rather
than separate categories of evidence.
o It is not important to draw a sharp line between these types of evidence because
the distinction has no legal effect.
 The Rules draw no distinction between direct and circumstantial evidence.
What is the cause of action?
 The cause of action will determine what evidence is admissible.
 The essential elements of the charge tell what facts must be proved or disproved.
FOUR W’S OF THE FEDERAL RULES OF EVIDENCE: WHY, WHO, WHERE, WHEN
(Pg. 20-31)
The Rules are a set of restrictions that federal courts place on attorneys who wish to submit
evidence to the trier of fact.
Why? (Pg. 20-21)
 The Rules adopt a generous view if admissibility, giving parties as much leeway
as possible to prove their cases. But they exclude evidence to achieve one or more
of these ends:
o To protect the jury from misleading information.
o To eliminate unnecessary delay and promote efficiency.
o To protect a social interest, such as a confidential relationship.
o To ensure that evidence is sufficiently reliable.
Who? (Pg. 21-23)
Where? (Pg. 23-25)
RULE 101. Scope; Definitions
(a) Scope. These rules apply to proceedings in United States courts. The specific courts and
proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.
RULE 1101. Applicability of the Rules
(a) To Courts and Judges. These rules apply to proceedings before:
· United States district courts;
· United States bankruptcy and magistrate judges;
· United States courts of appeals;
· the United States Court of Federal Claims; and
· the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.
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When? (Pg. 25-30)
RULE 1101. Applicability of the Rules
(b) To Cases and Proceedings. These rules apply in:
· civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;
· criminal cases and proceedings; and
· contempt proceedings, except those in which the court may act summarily.
[The Rules do not apply to every stage of adjudication in federal court. The rules apply on to the
trial. Most other stages, even though they are adversarial in nature, need not follow the formal
Rules.]
(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.
(d) Exceptions. These rules — except for those on privilege — do not apply to the following:
(1) the court’s determination, under Rule 104(a), on a preliminary question of fact
governing admissibility;
(2) grand-jury proceedings; and
(3) miscellaneous proceedings such as:
· extradition or rendition;
· issuing an arrest warrant, criminal summons, or search warrant;
· a preliminary examination in a criminal case;
· sentencing;
· granting or revoking probation or supervised release; and
· considering whether to release on bail or otherwise.
[Subsection (1) relieves judges from applying the Rules when declined a preliminary question
of fact. Judges make this type of determination whenever a party challenges the admissibility of
evidence; those rulings may occur either before or during trial.
Subsection (2) recognizes that the Rules do not apply to govern grand jury proceedings.
Subsection (3) exempts a large number of miscellaneous proceedings from the Rules.
 Subsection (3) lists examples of miscellaneous proceedings exempt from the Rules it
does not provide an exhaustive list of those proceedings. Judges may disregard the Rules
during other hearings that resemble the examples.]
(e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may
provide for admitting or excluding evidence independently from these rules.
STRUCTURE OF A TRIAL (Pg. 32-39)
1. Pretrial Motions (Pg. 32-34)
 During the months before trial, the parties file motions on a variety of subjects.
 Motions in limine: Motions that focus particularly on whether or not information is
admissible under the Rules.
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o Parties may file motions in limine either to exclude an opponent’s piece of
evidence or secure permission to introduce a potentially contested piece of their
own evidence.
Motion to suppress: Claim that the opponent’s evidence was illegally obtained (frequent
in criminal case).
Motion for summary judgment: Argue “that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.
2. Jury Selection (Pg. 34)
 Before a trial formally begins, the parties must select a jury. Lawyers commonly call this
process voir dire.
3. Opening Statements (Pg. 34-36)
 Before presenting evidence, lawyers for each side offer an opening statement to the jury.
 The opening statements are not evidence.
4. Plaintiff’s/Prosecutor’s Case-in-Chief (Pg. 36)
 The plaintiff or prosecutor presents its case to the jury.
 The “case” consists of the evidence—witness testimony, real evidence, documents, and
demonstrations—that comprise the plaintiff/prosecutor’s case.
5. Defendant’s Case-in-Chief or Case-in-Defense (Pg. 36)
 The defendant presents its case to the jury, calling witnesses and introducing evidence.
6. Plaintiff’s/Prosecutor’s Case-in-Rebuttal (Pg. 37)
 In its rebuttal case, the plaintiff or prosecutor rebuts evidence introduced by the defense.
The plaintiff or prosecutor may call new witnesses or introduce new evidence during this
phase, but those witnesses and evidence must focus on issues raised by the defense.
7. Defendant’s Case-in-Rebuttal or Case-in-Rejoinder (Pg. 37)
 Just as the plaintiff may respond to the defendant’s case-in-chief, the defendant may
respond to the plaintiff’s rebuttal.
8. Further Rebuttal and Rejoinder (Pg. 37)
 The trial judge has discretion to allow further rounds of rebuttal and rejoinder, although
these usually are unnecessary.
9. Closing Statements (Pg. 37)
 Closing statements, like opening ones, offer the jury a framework for assembling the
evidence and delivering the verdict that the party favors.
 Lawyers do not call witnesses or introduce evidence during the closing statement but, as
in the opening statement, they often use demonstrative evidence.
10. Instructing the Jury (Pg. 38)
 Judges traditionally instruct the jury after closing statements. Some judges, however, now
instruct the jury before closing statements.
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Most instructions to the jury include some directions about how to handle items of
evidence.
11. Deliberation (Pg. 38)
 After receiving instructions, the jury retires to deliberations Judges exercise discretion
over what evidence, if any, the jurors may take to the jury room.
 Judges often allow the jury to take into the jury room real and documentary evidence that
has been admitted into evidence. Sometimes they permit the jury to take demonstrative
evidence, if it is particularly helpful in organizing the facts of a complex case and is not
too argumentative.
 Juries, of course, cannot take witnesses with them into the jury room.
 If the jurors, have difficulty recalling an important piece of trial testimony, they may ask
the judge for a transcript of that testimony. Usually the judge responds to this type of
request by calling the jury back into the courtroom and asking the court reporter to read
the requested testimony back to them.
 Occasionally, the judge will send portions of the transcript itself into the jury room.
12. Verdict (Pg. 38-39)
 The trial concludes with the jury’s verdict and the court’s entry of judgment on the
verdict.
 Rules govern both bench and jury trials, although some rules apply differently to the two.
RAISING AND RESOLVING EVIDENTIARY OBJECTIONS (Pg. 40-54)
Disputing and Defending Evidence (Pg. 41)
 Rule 103 outlines the process that parties use to dispute and defend evidence at trial.
o Rule takes the standpoint of an appellate court.
o Outline the procedural steps that an attorney must make at trial before a reviewing
court will even consider the attorney’s evidentiary objections on appeal.
1. Raising Objections (Pg. 41-45)
 Rule 103(a)(1) establishes two mechanisms for disputing evidence at trial: by
objection and by a motion to strike.
o An objection occurs before the potentially offending evidence emerges
fully.
o Motions to strike occur after disputed evidence has already entered the
record.
 Requires parties to challenge evidence in a timely manner.
 Requires trial lawyers to state “the specific ground” for any objection.
o If an attorney sees multiple grounds for objecting to evidence, then the
attorney should raise each of those specifics. Raising one specific
objection will not prompt the trial judge to consider other grounds and will
not preserve those other grounds for appeal.
o The specificity rule also requires attorneys to designate the portion of a
document or witness’s testimony to which they object. If the entire
document or testimony is objectionable, the attorney can object to the
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whole. But if just one part of the evidence is inadmissible, the attorney
must specify that portion.
Rule 103 allows attorneys to forego specific if the basis of an objection is
“apparent from the context.” Good litigators always add at least one word or
phrase to an objection; this assures the judge’s understanding and preserves the
issue for appeal.
RULE 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
2. Defending Evidence (Pg. 45-46)
 Under Rule 103(a)(2), when one party objects to introduction of evidence, the
opponent makes an offer of proof to show the judge what the evidence entails.
o The offer of proof must be made one the record.
 If the opponent fails to make this offer, then he waives any objection on appeal.
 Sometimes counsel simply describes the evidence that would be introduced, such
as the answer a witness would give in response to the challenged question. Other
times, an attorney may demonstrate with the witness the actual questions that
would be asked and answered.
 A formal offer of proof is unnecessary if, as Rule 103(a)(2) provides, “the
substance” of the evidence is “apparent from the context.”
RULE 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the party and:
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of
proof, unless the substance was apparent from the context.
3. Maintaining Objections (Pg. 46-47)
 Once trial counsel has made a specific and timely objection, and the judge has
overruled the objection, per Rule 103(b) the issue is preserved for appeal.
 If a judges rules on a motion in limine, the losing party need not repeat any
objection or offer of proof at trial.
RULE 103. Rulings on Evidence
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on
the record — either before or at trial — a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.
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4. Shielding the Jury (Pg. 47)
 Rule 103(d) requires the court to decide evidentiary issues in a manner that
shields the jury, as much as possible, from hearing about inadmissible evidence.
RULE 103. Rulings on Evidence
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the
court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any
means.
Response by the Judge (Pg. 47-48)
 If the judge agrees with an evidentiary objection, she will sustain the objection and
exclude the evidence. If the judge disagrees with the objection, she will overrule it and
admit the evidence.
 If inadmissible evidence has inadvertently reached the jury’s ears, the judge may issue a
curative instruction. This type of instruction tells the jury to disregard evidence,
sometimes explaining why the evidence is misleading or inappropriate to consider.
 Under Rule 105, the judge may admit evidence for limited purposes.
o The judge usually gives the jury a limiting instruction to explain that the evidence
may be used for some purposes but not for others.
o Note that Rule 105 uses the word “must.” If evidence is admissible only for
limited purposes or against particular parties, and a party requests an instruction
making those limits clear, the judge must give that instruction.
o Limiting instructions often do more harm than good (focus the jury on the
evidence/issue).
RULE 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other
Purposes
If the court admits evidence that is admissible against a party or for a purpose — but not against
another party or for another purpose — the court, on timely request, must restrict the evidence to
its proper scope and instruct the jury accordingly.
On Appeal (Pg. 51-53)
 Appellate courts rarely reserve trial decisions based on evidentiary issues alone.
o If any reason exists which supports the admission of evidence, the judge’s ruling
will be affirmed, even if the judge used the wrong reason or Rule to admit the
evidence.
 Appellate courts apply an abuse of discretion standard to most claims of evidentiary
error.
 Rule 103(a) allows appellate judges to reverse a trial decision for evidentiary error only if
the error affected a “substantial right” of one of the parties.
o An evidentiary ruling affects a party’s “substantial right” only if there is a
reasonable probability that, if the judge had made the correct ruling, the outcome
of the case would have been different.
o Under Rule 103(a), most evidentiary missteps constitute harmless error.
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The “substantial right” standard applies even when an appellate court reviews an
evidentiary decision de novo. Appellate panels apply this standard when a trial judge
misinterprets a Rule or applies the wrong legal standard at trial.
If a party fails to preserve an evidentiary objections at trial, appellate review of the
challenge is even more limited. Under these circumstances, Rule 103(e) allows reversal
only for “plain error.”
RULE 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the party and:
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a
substantial right, even if the claim of error was not properly preserved.
EXAMINING WITNESSES (Pg. 174-194)
Rules 611, 614, and 615 establish the basis structure for examining witnesses.
RULE 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over the
mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
[Subsection (a) gives the judge the general power to control how witnesses are examined during
any stage of the witness’s testimony.]
[Any objection to the form of a question is an objection based on Rule 611(a).]
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of
the direct examination and matters affecting the witness’s credibility. The court may allow
inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as
necessary to develop the witness’s testimony. Ordinarily, the court should allow leading
questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an
adverse party.
[Subsections (b) and (c) work together to ensure that a witness uses his own words to tell the
story about what happened. Thus, leading questions are generally not allowed on direct
examination; the attorney must use the witness’s own words to build her case. But these
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questions are allowed on cross-examination, when the opposing attorney is limited to exploring
topics covered on direct rather than developing a new case.]
Direct Examination (Pg. 176-183)
 A law should generally not use leading questions on direct.
o A leading question is one that suggests a certain answer to the witness.
 A narrative form is generally not allowed.
 Rule 611 gives judges discretion to allow leading questions when they are “necessary to
develop the witness’s testimony.” There are four contexts in which judges may allow
attorneys to lead witnesses on direct examination:
o To establish pedigree information (educational background and occupation).
o To direct a witness’s attention to a relevant place and time (shift the witness’s
attention to a new chapter of the testimony).
o To help a witness who is hesitant, confused, or has trouble recalling (youth,
nervousness, illness, memory problems, etc.).
o When the witness is hostile, an adverse party, or identified with an adverse party.
A hostile witness is any witness who is evading questions or otherwise being
uncooperative to such an extent that it is interfering with the eliciting of
testimony.
 Ask the judge to declare the witness hostile.
Cross-Examination (Pg. 183-185)
 Cross-examination differs from direct examination in two important ways: (1) leading
questions are allowed, but (2) the cross-examiner may ask questions only about issues
covered during direct examination.
 Beyond the scope:
o Lawyers conducting cross-examination usually cannot ask a witness about topics
or incidents that were not addressed during direct examination.
o The rule gives the judge discretion to expand the scope of cross-examination.
o Parties are allowed on cross-examination to ask questions affecting the witness’s
credibility (bias, prejudice, etc.).
 Facts that are allowed include: relationship to a party; expected benefit
from the action; prior convictions; prior lies; and other reasons to lie.
RULE 614. Court’s Calling or Examining a Witness
(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled
to cross-examine the witness.
(b) Examining. The court may examine a witness regardless of who calls the witness.
(c) Objections. A party may object to the court’s calling or examining a witness either at that
time or at the next opportunity when the jury is not present.
[The court may call witnesses, but this is rarely done. The court may question any witness. A
federal judge may comment on the evidence. A jury may ask questions.]
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PRELIMINARY QUESTIONS (Pg. 406-423)
In determining whether to allow evidence to go before the trier of fact, the court is not generally
bound by the Rules, except as to matters of privilege. Rules 104(a), 1101(d)(1).
 Rule 104(a) applies when the court is determining whether: (1) a person is qualified to be
witnesses; (2) a privilege exists; or (3) evidence is admissible.
 Rules also do not apply in: (1) grand jury proceedings; (2) preliminary examinations; (3)
sentencing proceedings; (4) probation or supervised release hearings; (5) bail
proceedings; (6) arrest or search warrant applications; or (7) extradition proceedings.
In a Rule 104(a) determination, the proponent’s burden of proof is for the judge to find that a
preponderance of the evidence supports the introduction of the evidence.
In a Rule 104(a) determination:
 Judge hears evidence from both sides of the issues;
 Rules are not used, except as to privilege;
 Judge determines the credibility of witnesses; and
 Judge determines whether the proponent has shown the evidence is admissible by a
preponderance of the evidence.
If the relevancy of the evidence depends on the fulfillment of a condition of fact, then the court
must use Rule 104(b) to determine the admissibility of evidence.
 Rule 104(b) applies in two situations:
o Where evidence is to be admitted subject to being later connected up with
evidence which shows its relevance; or
o When the occurrence of a fact is necessary to make the evidence relevant.
 The court in determining admissibility under Rule 104(b) must use the Rules.
 The burden of proof is still whether a preponderance of the evidence supports the
admission of evidence, but in a Rule 104(b) determination the judge must find that a
reasonable trier of fact could find the conditional fact by a preponderance of the
evidence, before the evidence is presented to the trier of fact for consideration.
In a Rule 104(b) determination:
 Rules do apply.
 Only the proponent is allowed to put on evidence, but the opponent may cross-examine
witnesses.
 Judge cannot determine the credibility of witnesses and must accept what a witness says
as true.
 Judge must determine whether a reasonable jury could find the evidence admissible by a
preponderance of the evidence.
 Judge must instruct the jury on the proper test to use to determine the admissibility of the
evidence.
Judge will also consider whether the evidence presented is intrinsic or extrinsic.
 Intrinsic evidence is the facts that prove the allegations in your complaint or indictment.
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Extrinsic evidence is any other facts (extraneous and is not intimately connected or
blended with the actual circumstances of the charged offense.
RULE 104. Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by
evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The
court may admit the proposed evidence on the condition that the proof be introduced later.
[Section (b) tells judges to screen evidence just for the sufficiency of the evidence to establish
relevance. If the evidence survives this threshold scrutiny, the jury will resolve the factual
dispute.
The judge should let the jury decide the factual issue if enough evidence exists that a rational
jury could resolve the factual dispute either way.]
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any
hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests; or
(3) justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary
question, a defendant in a criminal case does not become subject to cross-examination on other
issues in the case.
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to
introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
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COMPETENCY
(Rules 601, 602, 603, and 403)
If a witness is not competent then they will not be allowed to go before the trier of fact to present
any evidence.
 While it is rare that a witness is not competent, don’t ignore this requirement.
 If there is reason to doubt the witness’s testimony, opposing counsel can raise those
issues on cross-examination. The jurors, rather than inflexible rules, decide whether to
believe the witness.
A competent witness (1) has personal knowledge of the facts that matter to the case, (2)
understands the duty to tell the truth, and (3) agrees to tell the truth.
PUTTING A WITNESS ON THE STAND (Pg. 157-173)
Rule 601 state that every person is competent to be a witness—except as otherwise provided in
the Rules.
 In civil cases where state law provides an element of the claim or a defense, like in a
diversity case, the law of that state determines who is a competent witness.
o Most state evidentiary codes, like the Rules, recognize almost all individuals as
competent witnesses.
 Many states, however, maintain a few exceptions to the modern
presumption of competence. Some declare children under a certain age
incompetent to testify. Others retain “Dead Man’s Statutes,” which restrict
evidence when a live person asserts a civil claim against a deceased one.
Experts (Rule 702): The expertise of the witness takes the place of the personal knowledge
requirement of the Rules. The expert witness must still understand the duty to tell the truth and
agree to do so.
 A witness is qualified as an expert by: knowledge, skill, experience, training, and/or
education.
RULE 601. Competency to Testify in General
Every person is competent to be a witness unless these rules provide otherwise. But in a civil
case, state law governs the witness’s competency regarding a claim or defense for which state
law supplies the rule of decision.
[Under Rule 605, the judge who presides over a case cannot also testify as a witness.
 This also prohibits the judge from offering commentary from the bench that amounts to
testimony.]
RULE 605. Judge’s Competency as a Witness
The presiding judge may not testify as a witness at the trial. A party need not object to preserve
the issue.
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[Rule 606 states that jurors generally cannot testify in a trial where they play a decision-making
role.]
RULE 606. Juror’s Competency as a Witness
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror
is called to testify, the court must give a party an opportunity to object outside the jury’s
presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a
verdict or indictment, a juror may not testify about any statement made or incident that
occurred during the jury’s deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The
court may not receive a juror’s affidavit or evidence of a juror’s statement on these
matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s
attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
[Rule 602 limits witnesses to those with “personal knowledge of the matter.” This means the
witness perceived the matter through one of his senses: See, hear, smell, taste, and touch.
 Witnesses may testify to matters that they heard about from others but did not observe
firsthand.
 Witnesses may have knowledge of circumstantial evidence.
 Personal knowledge establishes a threshold standard for competence, but it is a very easy
standard to meet.
 Before witnesses start to testify, they must demonstrate that they have personal
knowledge of the matters they will testify about.
o Establishing a witness’s personal knowledge is part of the “foundation” that a
lawyer must lay to support the witness’s testimony.
o Much of the time, a witness’s own testimony provides the necessary foundation to
establish personal knowledge.
 An exception is made for expert witnesses under Rule 703.]
RULE 602. Need for Personal Knowledge
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A witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. Evidence to prove personal knowledge
may consist of the witness’s own testimony. This rule does not apply to a witness’s expert
testimony under Rule 703.
[Rule 603 states that a witness must be able to take, understand, and follow an oath or
affirmation to tell the truth.
 Very young children and the mentally ill may be deemed incompetent because they
cannot take and understand an oath.
 A witness cannot refuse to take an oath or affirmation to tell the truth.]
RULE 603. Oath or Affirmation to Testify Truthfully
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a
form designed to impress that duty on the witness’s conscience.
[Under Rule 604, an interpreter must (1) be qualified and (2) make an oath or affirmation to
make a true translation.]
RULE 604. Interpreter
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
[Rule 403 states that a witness may be excluded if his testimony is cumulative, needless, a
waste of time, or will cause undue delay.
 A witness may also be excluded because the probative value of his/her testimony is
substantially outweighed by the danger of unfair prejudice.
o Fair prejudice is allowed.
 A witness may also be excluded because his testimony will confuse of mislead the
jury.]
RULE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or
Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
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AUTHENTICATION
(Rules 901 and 902)
Once a witness is competent, the witness may then “sponsor” either documents or physical
evidence. The witness must first show that the document or physical evidence is (1) relevant by
linking it to the controversy, (2) genuine, and (3) placed in proper context (this is authentication).
 If the document or physical evidence cannot be authenticated, the trier of fact will never
get to see or hear about it.
Modern discovery rules have largely done away with much of the fight over authentication.
Because parties identify their evidence and the source early in a case, the opponent has time to
research the authenticity of evidence and generally will agree to stipulate that the evidence is
authentic.
 The opponent’s agreement to stipulate is a concession and not a stipulation. A stipulation
occurs only when all parties have agreed on a point.
AUTHENTICATION (Pg. 868-884)
Authentication applies to documents and any other physical object.
Authentication shows that a piece of evidence is genuine—meaning that the evidence is what it
is claimed to be.
 Authentication does not guarantee the identity or genuineness of any evidence. Even after
an item has been authenticated and admitted into evidence, an opponent can challenge
that items’ identity.
 Authentication does not establish compliance with other evidentiary rules. Authentication
only offers some assurance that the evidence is what the proponent claims. The proponent
must also satisfy any other Rule.
To authenticate evidence, the proponent must lay a foundation. The foundation is always subject
to Rule 104(b), thus the Rules apply at this stage.
 In deciding whether the proponent has met the burden of authentication, the judge only
decides that there is sufficient evidence to support a jury finding of authenticity.
 It is left to the trier of fact to make the final decision about whether the evidence is
authentic.
Authenticating Different Type of Evidence:
 Distinctive Features: If a piece of evidence has distinctive characteristics, a witness
familiar with the item can identify it in court. Rule 901(b)(1).
 Chain of Custody: Critical pieces of evidence sometimes lack distinctive features that
allow easy identification by a witness. Evidence also may change hands before a party
has the chance to tag it with a unique identifier. Under these circumstances, parties often
rely upon a “chain of custody” to authenticate evidence.
o To demonstrate a chain of custody, the party calls a series of witnesses, each of
whom describes how they obtained the item and passed it to the next person in the
chain.
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o Parties also use chain-of-custody testimony to establish that the condition of
evidence has not changed in a way that would affect the case.
Handwriting:
o The person who authored the note or signature may identify the writing as her
own. Rule 901(b)(1).
o Someone who saw the act of writing may identify the person who wrote or signed
the document. Rule 901(b)(1).
o An expert witness may identify handwriting by comparing the disputed writing
with a sample that has been verified by other means. Rule 901(b)(3).
o The trier of fact may compare signatures in the same manner that an expert does.
Rule 901(b)(3).
o A lay person who is familiar with another person’s handwriting may identify that
handwriting in court. Rule 901(b)(2).
Voice Identification: Any witness who is familiar with a person’s voice may identify that
voice in court. Rule 901(b)(5).
o Voice recognition may be developed solely in connection with litigation.
Photographs and Videos: A party must authenticate the visual aid as a fair and accurate
representation of the underlying scene at the relevant time. A litigant may call any person
familiar with the underlying scene to testify that the photo or video accurately portrays
the scene as it appeared at the relevant time.
Emails: Parties can easily authenticate emails under Rule 910(b)(4), which allows
authentication through “appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the circumstances.”
Public Records: Public records constitute one important category of self-authenticating
documents.
o Under Rule 902(1), a party may introduce an original public document from any
federal, state, or local government unit if that document bears both a signature
attesting to the document’s authenticity and the official seal of the government
unit.
o Rule 902(2) offers a similar avenue for authenticating public records produced by
government units that lack their own seals.
o Rule 902(4) allows a party to introduce a certified copy of any “official record.”
o Rule 902(3) establishes avenues for authenticating public documents from foreign
countries.
o Rule 902(5) recognizes a “book, pamphlet, or other publication purporting to be
issued by a public authority” as self-authenticating.
Newspapers and Periodicals: Newspapers and periodicals are self-authenticating under
Rule 902(6).
Business Records: Self-authenticating under Rules 902(11) and (12).
Websites: Self-authenticating under Rule 902(14).
How does the proponent lay a foundation in order to authenticate? (Rule 901)
RULE 901. Authenticating or Identifying Evidence
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(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence,
the proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.
(b) Examples. The following are examples only — not a complete list — of evidence that
satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is
claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is
genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an
authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item, taken together with all
the circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard
firsthand or through mechanical or electronic transmission or recording — based on
hearing the voice at any time under circumstances that connect it with the alleged
speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence
that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that
the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to
business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this
kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or
data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
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(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or system and
showing that it produces an accurate result.
(10) Methods Provided by a Statute or Rule. Any method of authentication or
identification allowed by a federal statute or a rule prescribed by the Supreme Court.
[Authentication of Electronic Data: As electronic data is a newer area, judges are still coming to
terms with how one authenticates such data.
 Many courts have come to the conclusion that electronic data is no different than any
other information. Thus, electronic data may be authenticated by a witness involved in
the creation of the data, or who saw the data being created. Rule 901(b)(1).
 If such a witness is not available, then Rule 901(b)(4) may be used. Rule 901(b)(4)
factors that courts have looked to authenticate electronic data include:
o (1) The author’s known email address or phone number; (2) the author’s
electronic signature; (3) the author’s name, nickname, or screen name; (4) the
author’s customary use of emoji or emoticons; (5) facts that only a small set of
individuals (including the author) know; (6) facts or attachments that are uniquely
tied to the author, such as personal information, photos of pets or loved ones, or
contact information of close friends; (7) a witness testifying that the author told
her to expect the message; (8) the author acting in accordance with an exchange
with the witness; (9) the author orally repeating the content of the message soon
after it was sent; and (10) forensic information (such as a message’ hashtag value)
may tie the message to a particular phone or computer.]
SELF AUTHENTICATION
Some documents are presumed to be genuine and thus require no authenticating witness. Rule
902.
 Rule 104(e) still allows the opposing party to attack the authenticity of a selfauthenticating document.
 If the court finds that a document is not self-authenticating, a part may still use Rule 901
to authenticate.
RULE 902. Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of
authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States; the former
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Panama Canal Zone; the Trust Territory of the Pacific Islands; a political
subdivision of any of these entities; or a department, agency, or officer of any
entity named above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified.
A document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule
902(1)(A); and
(B) another public officer who has a seal and official duties within that same
entity certifies under seal — or its equivalent — that the signer has the official
capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a
person who is authorized by a foreign country’s law to do so. The document must be
accompanied by a final certification that certifies the genuineness of the signature and
official position of the signer or attester — or of any foreign official whose certificate of
genuineness relates to the signature or attestation or is in a chain of certificates of
genuineness relating to the signature or attestation. The certification may be made by a
secretary of a United States embassy or legation; by a consul general, vice consul, or
consular agent of the United States; or by a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If all parties have been given a
reasonable opportunity to investigate the document’s authenticity and accuracy, the court
may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification;
or
(B) allow it to be evidenced by an attested summary with or without final
certification.
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a
document that was recorded or filed in a public office as authorized by law — if the copy
is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a
rule prescribed by the Supreme Court.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued
by a public authority.
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(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or
periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to
have been affixed in the course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of
acknowledgment that is lawfully executed by a notary public or another officer who is
authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it,
and related documents, to the extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else
that a federal statute declares to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a
copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown
by a certification of the custodian or another qualified person that complies with a federal
statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the
proponent must give an adverse party reasonable written notice of the intent to offer the
record — and must make the record and certification available for inspection — so that
the party has a fair opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the
original or a copy of a foreign record that meets the requirements of Rule 902(11),
modified as follows: the certification, rather than complying with a federal statute or
Supreme Court rule, must be signed in a manner that, if falsely made, would subject the
maker to a criminal penalty in the country where the certification is signed. The
proponent must also meet the notice requirements of Rule 902(11).
(13) Certified Records Generated by an Electronic Process or System [Electronically
Generated Records]. A record generated by an electronic process or system that
produces an accurate result, as shown by a certification of a qualified person that
complies with the certification requirements of Rule 902(11) or (12). The proponent must
also meet the notice requirements of Rule 902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File
[Websites]. Data copied from an electronic device, storage medium, or file, if
authenticated by a process of digital identification, as shown by a certification of a
qualified person that complies with the certification requirements of Rule (902(11) or
(12). The proponent also must meet the notice requirements of Rule 902 (11).
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RELEVANCY
(Rules 401, 402, and 403)
Even if a witness is competent and the physical evidence can be authenticated, it must then be
shown to be relevant before a court will allow the trier of fact to hear it. Relevance is a factbased determination that the testimony or physical evidence has importance to an issue in the
case.
Relevant evidence is always prejudicial to the other sides—“fair” prejudice is allowed.
Even if evidence is relevant, it may still be excluded if it is too prejudicial, or if it is confusing,
cumulative, wastes times, or is inadmissible under some other Rule.
Because the veracity and credibility of a witness is always an issue for the trier of fact, bias,
prejudice, and any other reason for a witness to lie is always relevant.
RELEVANCE (Pg. 55-68)
Relevance is an essential gateway to the courtroom. If evidence fails the relevance test, the court
cannot admit it.
Relevancy applies to both witness testimony and physical exhibits.
 A 2008 Supreme Court decision stressed that questions of relevance under Rules 401 and
402 “are determined in the context of the facts and arguments in a particular case.” Thus,
courts generally should not create broad per se rules governing the relevance of whole
categories of evidence. Sprint/United Mgmt. Co. v. Mendelsohn (S. Ct. 2008).
Evidence is relevant even if it addresses a matter conceded by the opponent.
The issue of whether to believe a witness is always one for the trier of fact. Thus, anything that
may show that a witness is not honest is relevant to the trier of fact. Bias, prejudice, issues with
memory or perception, prior convictions, prior falsehoods, interest in the outcome of the case, or
a motive to lie all fall within this range of relevant questions for a witness.
The concept of conditional relevance should be understood in terms of how to make a piece of
evidence relevant. Think of Rule 104(b) in these situations:
 In a conspiracy case, evidence is only relevant as to a co-conspirator if it is proven that
there was a conspiracy and the parties were conspirators.
 A request to admit evidence subject to later connecting up.
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and
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(b) the fact is of consequence in determining the action.
Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
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the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
PREJUDICE, CONFUSION, OR WASTE OF TIME (Pg. 69-84)
Evidence that is relevant may still be excluded:
 It must still be admissible pursuant to other rules.
 Even if evidence is admissible under other Rules, It may still be excluded if:
o The probative value of evidence is substantially outweighed by danger that the
evidence is cumulative, needless, a waste of time, or will cause undue delay. Rule
403.
o The probative value of evidence is substantially outweighed by danger of unfair
prejudice. Rule 403.
o Evidence will confuse or mislead the jury. Rule 403.
Judges have considerable discretion in making Rule 403 decisions because of the use of the word
“may.” The Supreme Court has stressed that judges should apply Rule 403 on a case-by-case
basis.
 Appellate courts rarely reverse rule 403 rulings.
For a judge to exclude relevant evidence, its unfair prejudice, confusion, or delay must
“substantially” outweigh its probative value.
Prejudice must be “unfair” to allow exclusion. Unfairly prejudicial evidence “lure[s] the fact
finder into declaring guilt [or liability] on a ground different from proof specific to the offense
charged.” Old Chief (S. Ct. 1997).
Five factors frequently influence a judge’s decision when applying Rule 403:
1. Extend to which the evidence will arouse emotions or irrational prejudices among the
jurors. Judges are more likely to exclude evidence that triggers strong emotional
reactions.
2. Extent to which the jury might overvalue the evidence—that is, take a piece of evidence
which is only slightly relevant and give it undue weight.
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3. The strength of the connection between the evidence and the elements of the case. Judges
are more likely to admit evidence that it closely related to essential elements of a case,
even when that evidence is highly emotional.
4. Whether the advocate can prove the same facts through less prejudicial or confusing
means. If alternative routes are available, the judge is less likely to admit the challenged
evidence.
5. Whether it would be possible to reduce prejudice or other harm once the evidence is
introduced. If the judge can redact prejudicial components of the evidence or instruct the
jury to refrain from improper uses of the evidence, he or she will be more likely to admit
the evidence.
Application of Rule 403 to:
 Damaging Evidence: Parties frequently claim that evidence is “unfair” simply because it
will damage their case. Courts routinely reject these claims. Rule 403 permits exclusion
of evidence that is unfairly only in the sense that it inflames the jury’s passions or
otherwise introduces an improper basis for decision. Evidence that strongly supports
the position of one party and damages the other is not “unfair,” it is just persuasive.
 Videos and Photos: Visual media often deliver an emotional punch that verbal testimony
rarely conveys.
o Judges must decide whether the jurors’ emotional reaction to the devastating
effects of a crime will push them to blame the defendant, overlooking any
exonerating evidence.
 Socially Undesirable Behavior: Parties sometimes attempt to introduce evidence of an
opponent’s unconventional lifestyle, hoping that the jurors’ biases will lead them to view
the opponent negatively. Judges exclude some of these attempts under Rule 402 because
the evidence simply isn’t relevant. Other times, lifestyle evidence may have some bearing
on issues in the case. In these cases, parties may invoke Rule 403 on the ground that the
unfair prejudice resulting from the evidence substantially outweighs any probative value.
o Courts are very sensitive to the prejudicial impact of evidence that a party has
expressed racist attitudes. But where that evidence relates directly to the crime or
other litigated issue, courts will admit it.
 Flight: If a criminal defendant flees the jurisdiction shortly after a crime, or after learning
that the police have focused suspicion on him or her, is that admissible evidence of guilt?
Court analyze this recurring question under Rule 403, nothing that travel has innocent as
well as guilty purposes. In addition, some innocent defendants may run from the police
because they fear unfair treatment by the criminal justice system.
 Stipulations: The presence of a stipulation may affect the balance of unfair prejudice and
probative value under Rule 403.
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
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HEARSAY
(Rules 801, 802, 805, and 806)
Once a witness is deemed competent, any physical objects are deemed authentic, and evidence is
deemed relevant, it must be determined whether any evidence is hearsay. If the evidence is
hearsay, it must be determined whether the Rules provide an exception to allow the hearsay
evidence to go to the trier of fact.
Hearsay is a statement of a person first made at any time other than while testifying which is
offered to prove the truth of the contents of the statement.
To determine whether a statement qualifies as hearsay, a court will perform a Rule 104(a)
analysis. This means the Rules do not apply.
 A court may rely solely on hearsay to determine if the hearsay is admissible (but court
should be cautious).
Due Process Clause: May require the admission of hearsay if the statement is otherwise reliable.
As the Sixth Amendment requires that a criminal defendant have a right to a defense, where the
hearsay rules exclude the only defense a defendant has, the Constitution overrides the Rules ahd
the hearsay must be allowed.
WHAT IS HEARSAY AND WHY DON’T WE LIKE IT? (Pg. 424-436)
Prefer firsthand testimony to secondhand reporting because:
 Secondhand testimony doubles the possibility that one of the reporters is mistaken or
lying.
 Firsthand testimony can be tested by cross-examination.
 The finder of fact can better evaluated the confidence and sincerity of the information if
they can watch the individual report it firsthand.
 At trial, firsthand testimony is made under oath in a formal, solemn setting.
A declarant is a person who makes a statement based on firsthand knowledge. A witness is a
person who testifies in the current proceeding.
 The hearsay bar applies to any statement made by any declarant unless that declarant
offers the statement while testifying in the current proceeding.
 Even if the witness and the declarant are the same person, any prior statements by the
witness are potentially hearsay because they were not made under oath during the current
proceeding.
RULE 801. Definitions That Apply to This Article; Exclusions from Hearsay
The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.
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(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
st
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.
RULE 802. The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
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a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Assertion-Based Model: The FREs are assertion-based. It does not matter whether the witness is
repeating an assertion that he or she said prior to the trial or hearing. What matters in
determining whether a statement is hearsay is whether it is being offered for the truth of the
matter asserted.
Declarant-Based Model: Some states’ evidence rules are declarant-based. It is not hearsay
under this model for a declarant witness to state an assertion that he or she said prior to the trial
or hearing because the witness is available at the trial or hearing and is able to be crossexamined.
THE “TRUTH OF THE MATTER ASSERTED” (Pg. 437-449)
If a litigant offers the statement to prove the truth of the matter asserted, it is inadmissible
hearsay. If the party offers the statement for any other purpose, it is not hearsay.
CRITICAL QUESTION: What is the proponent trying to prove with the statement?
 Often, the party wants the factfinder to believe the truth of the statement’s content. If a
party offers an out-of-court statement for this purpose, it is hearsay.
 Other times, a party introduces an out-of-court statement only to demonstrate that the
statement was made. The truth of the statement is irrelevant to the party’s purpose. The
statement is not hearsay.
Common purposes for out-of-court statements that do not depend on the truth of the matter
asserted (not hearsay):
 Knowledge of the Speaker: The defendant in a personal injury case might have
mentioned to a neighbor that a dangerous condition existed on his property. The
statement is hearsay if offered to show that the condition existed, but it is not heaersay if
offered simply to show the defendant’s knowledge.
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Notice to a Listener. In a medical malpractice action, a nurse might testify that she heard
the surgeon explain the risks of surgery to the plaintiff, showing that the patient was fully
aware of the dangers.
Publication in a defamation case. To recover for defamation, the plaintiff must prove both
that the defendant made a defamatory statement and that at least one other person heard
or read the statement. The statement need not be true; indeed, the plaintiff claims that it
was false.
Effect on the listener. If the defendant in a prosecution for menacing said to a victim “I
hid a dozen venomous rattlesnakes in your house,” it doesn’t matter whether the
defendant really hid the rattlesnakes. The elements of this crime require only that the
defendant make the statement and the words give the victim a reasonable fear of bodily
harm.
o Many witnesses testify that another person’s statement prompted them to act in a
particular way. Most of the time, this testimony is not hearsay.
Legally binding statement. In a contract case, the fact that the defendant said “I accept” is
relevant to prove that he agreed to a contract. Similarly, in a trespass case, the fact that a
property owner said “I give you permission to come onto my property” is relevant to
prove that the defendant entered with consent. The truth of these statement doesn’t
matter; even if the speaker was lying, the words establish consent.
Statements that will qualify as not being offered to prove the truth of the matter asserted:
 Statement that is used to explain the conduct of a person after hearing the statement.
 Statement that is, in reality, a misrepresentation.
 Statement that is a false exculpatory statement.
 Statement that proves that a person was given notice of a fact or condition.
 Statement offered to prove good or bad faith belief.
 Questions are generally not hearsay because they usually cannot be proven true or false,
so they cannot be offered to prove the truth of the question. However, if the question
contains an implied assertion of a fact, it may be hearsay.
o Similar arguments can be made that a command is not hearsay.
The hearsay rules often prompt game-playing by litigants. A litigant may have an out-of-court
statement that is extremely probative if used for the truth of the matter asserted. The hearsay
rules forbid the litigant from using the evidence for that purpose, so the attorney seeks a nonhearsay purpose to support introduction of the evidence. The opposing counsel will point out that
the non-hearsay purpose is a Trojan horse hiding the proponent’s real purpose for offering the
evidence. If the court admits the out-of-court statement, the opponent will argue the jury will be
unable to ignore the truth of the matter asserted.
 The judge will resolve this conflict by balancing the probative value of the non-hearsay
purpose against the unfair prejudice of the hearsay purpose. This Rule 403 balance,
however, tilts in favor of admissibility and often admits evidence with both hearsay and
non-hearsay.
WHAT IS A STATEMENT? (Pg. 450-460)
What is a “statement”?
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Written and oral communications.
Assertive behaviors are statements subject to the hearsay rules.
Non-assertive behaviors are not statements, and thus not hearsay.
A good rule of thumb for distinguishing between assertive and non-assertive conduct is to ask:
Do we need to assess the actor’s sincerity in order to rely upon the conduct? Ask whether the
actor intended to communicate information through that conduct.
 If we do, the conduct contains an assertion and the hearsay rules applies.
 If not, the actor was not trying to assert any fact, and the jury is free to draw any
reasonable inference from the reported conduct.
An assertion is any action undertaken by the declarant that is intended to communicate a fact.
 The key is whether the declarant intended to communicate a fact through her conduct.
Audiotapes, Photographs, and Videotapes: Depends on their content. Most photos and videotapes
shown in the courtroom do not portray human assertions. Instead, these media usually depict
physical objects or non-assertive human conduct.
 But if a photo or videotape does convey verbal assertions or assertive behavior, offered
for the truth of the matter asserted, then those assertions are statements subject to the
hearsay rule.
Machine Readouts: When evidence consists of information conveyed by a machine, the judge
will explore whether that information incorporates a human assertion. If a person communicated
a fact through a machine, then the assertion is a statement subject to the hearsay rule. If the
machine generated information according to its own internal processes, then the machine’s
output is not an assertion by a person.
Verbal Act Doctrine: A statement that is an operative fact or a verbal act is not a hearsay
statement. A verbal act is a statement that affects the legal rights of the parties. Such acts are
limited to statements that have independent legal significance.
 Some statements are facts that must be proven to show a material fact in the case. In this
circumstance, the statements are not hearsay.
 Case law defines these statements as verbal acts, and thus not hearsay:
o Money order forms.
o Contracts and slander.
o FDIC insurance certificate.
o Demand for a refund.
o Statement Department officials’ statements about treaty allow enforcement of
U.S. laws.
o Ballots cast.
o Checks.
o Statements introduced to later show they are false.
o Testimony that explains how an investigation developed when relevant and not
too prejudicial. Especially true if it goes to noncontroversial matters or rebuts
suggestions by the other side.
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ADMISSIBLE HEARSAY (Pg. 461-466)
All of the hearsay exceptions rest on two axioms:
 Some hearsay statements are more reliable than others.
 Some hearsay statements are more needed than others.
Four categories of exceptions:
 Rule 801(d) defines two types of out-of-court statements as “not hearsay.”
o Prior statements by witnesses.
o Statements made by opposing parties.
 Rule 804 recognizes five exceptions to the hearsay rule that apply only if the declarant is
unavailable to testify in court.
 Rule 803 lists twenty-three different exceptions to the hearsay rule that apply whether or
not the declarant is available to testify.
 Rule 807 creates a residual exception that allows courts to admit some statements that all
outside the other thirty exceptions but have similar guarantees of trustworthiness.
The judge decides whether a statement is hearsay and whether one of the exceptions applies. If
the parties dispute whether the necessary facts exist to support an exception, the judge will
resolve that factual question under Rule 104(a).
 The party offering the statement must persuade the judge by a preponderance of the
evidence that the facts exist to support a hearsay exception.
HEARSAY EXEMPTION—PRIOR STATEMENTS BY WITNESSES (Pg. 467-489)
RULE 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions
is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is
subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under
penalty of perjury at a trial, hearing, or other proceeding or in a deposition
[statements that are inconsistent with the witness’s courtroom testimony];
(B) is consistent with the declarant’s testimony and is offered [statements
that are consistent with the witness’s courtroom testimony]:
(i) to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in
so testifying; or
29
(ii) to rehabilitate the declarant's credibility as a witness when
attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier [pretrial
identifications of a person].
Rule 801(d)(1) establishes two conditions that must be met to admit any statement: (1) the
declarant must testify at trial, and (2) the declarant must be subject to cross-examination on the
statement.
 (d)(1)(A): Exempts a witness’s prior statement if the statement satisfies three conditions:
(1) it is inconsistent with the witness’s current testimony; (2) it was made under penalty
of perjury; and (3) it occurred at a deposition or during a trial, hearing, or other
proceeding.
o Inconsistent testimony includes:
 Incomplete answers to questions.
 Contrived memory loss.
 Silence.
 Changes in position.
 Almost any divergence will suffice to permit use of the prior statement.
 (d)(1)(B): Does not require that the witness’s prior statement occurred under oath or at a
proceeding. Limits the admissibility of prior consistent statements to situations in which a
party attempts to rebut the opponent’s claim that the witness has fabricated the testimony
in response to improper influence or some other motive. The statements must have
occurred before the witness developed any motive to lie.
o A party may introduce a witness’s prior consistent statement (1) only to rebut
claims that the witness is lying, has a motive to lie, or has been exposed to
improper influences that would affect his testimony; and (2) only if the prior
consistent statement occurred before the motive to lie or improper influence arose.
 If the statement was made before the witness had a motive to lie, it is
admissible to prove that the witness had the same story all along. If the
statement was made after the witness developed a motive to lie, it does
nothing to rebut the charge of fabrication and is therefore inadmissible
under 801(d)(1)(B).
o Cross-examination that leads to the use of Rule 801(d)(1)(B):
 Impeachment with a plea agreement.
 Questioning the truthfulness of a victim’s account of a sexual assault.
 Questioning whether a witness had told police about the defendant in an
interview.
 Questioning whether prior grand jury testimony differed from trial
testimony.
 (d)(1)(C): Allows introduction of any identification of a person, as long as the person
who made the identification testifies at trial and is subject to cross-examination on the
identification.
o Out-of-court identifications have the unusual characteristic of being more reliable
than in-court identifications.
30
o Most frequently used in criminal cases where the identity of the perpetrator is a
disputed issue.
Admitting Prior Statements Under Rule 801(d)(1)
Prior statement must have been made by a witness at the current proceeding.
Witness must be subject to cross-examination:
 Appearance on the stand, taking an oath, and a willingness to answer questions are
sufficient to satisfy the cross-examination requirement of Rule 801(d)(1).
 Witnesses with real or feigned memory loss are “subject to cross”
 Witnesses who assert a blanket privilege are not “subject to cross”
 Witnesses who claim privilege selectively may be “subject to cross”
Prior Inconsistent
Prior Consistent Statement: Identification: 801(d)(1)(C)
Statement: 801(d)(1)(A)
801(d)(1)(B)
 Memory failure, real
 Must be offered to
 Must be an
or feigned, constitutes
rebut express or
identification of a
inconsistency
implied charge of
person
recent fabrication or
 Statement must have
improper influence or
been given under
motive
penalty of perjury at a
hearing, deposition, or
 Prior statement must
other proceeding
have been made
before the motive to
 Grand jury hearings
fabricate or improper
count as proceedings;
influence began
police interrogations
do not
Statements are admitted for the truth of the matter asserted, not merely to impeach a witness.
Rule 801(d)(1) and Rule 613
 Rule 613 governs use of a witness’s prior inconsistent statements to impeach the
witness’s credibility. Under some circumstances, parties also use 613 to introduce prior
consistent statements rehabilitating a witness’s creditability.
o Parties who offer prior statements under Rule 614 do not offer them for the
content of those statements (not hearsay). Instead, they introduce this evidence to
illuminate the witness’s credibility.
o All statements admitted under Rule 613 are subject a limiting instruction by the
judge directing the jury to only consider the statements as they relate to the
witness’s credibility and not for the truth of their contents.
o Allows a party to offer evidence of any prior inconsistent statement, even a casual
comment to a friend, as long as the inconsistency relates to a fact of consequence
in the litigation. Because the party offers the statement for a limited purpose, to
impeach the witness’s credibility, reliability of the prior statement has little
importance. The inconsistency itself, whatever its cause, is significant.
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
Prior statements admitted under Rule 801(d)(1) are offered for their content and thus are
hearsay statements unless they fit within the bounds of 801(d)(1) or some other hearsay
exception.
o A party offers a prior inconsistent statement for its substance. Reliability is
essential and the rule imposes strict requirements: the prior statement must have
been made under penalty of perjury and at a proceeding. Rule 801(d)(1)(A).
Rule 613
Rule 801(d)(1)(A)
Any prior inconsistent statement related to a
Prior inconsistent statement must have been
fact of consequence is admissible
made under penalty of perjury and at a trial,
hearing, other proceeding, or deposition
Statement is admissible only to impeach the
Party may rely upon the statement to prove
witness’s credibility
the truth of the matters asserted
Judge will instruct the jury to use the prior
No limiting instruction
statement only to assess credibility
For prior consistent statements, Rules 613 and 801(d)(1)(B) merge in their requirements.
 Whether offered to rehabilitate a witness under Rule 613 or to prove the truth of the
matter asserted under Rule 801(d)(1)(B), the prior consistent statement may take any
form.
 Parties may only offer these statements to rebut a charge of fabrication or improper
influence, and the consistent statement must have occurred before the motive to lie or
improper influence arose.
 A prior consistent statement is admissible both to rehabilitate the witness’s credibility and
for its substantive content.
HEARSAY EXEMPTION—STATEMENTS BY AN OPPOSING PARTY (Pg. 635-648)
Rule 801(d)(2) allows a party to introduce any out-of-court statement made by an opposing
party. The opposing party’s statement need not have been against interest, made under oath, or
have any other extra indicia of reliability.
 Any statement by a party is exempt from the hearsay rule when offered against that party.
If the statement of the party opponent is in a civil case, all that is needed is to show that the party
opponent made the statement. Rule 801(d)(2)(A).
If the party opponent is the defendant in a criminal case, there are additional burdens to meet
before the statement may be admitted:
 Statement was made voluntarily.
 If made while in custody, the statement was made after a voluntary waiver of the
Miranda rights.
 Judge must rule on admissibility before it goes to the trier of fact.
 Trier of fact may later consider the voluntarily nature of the statements in deciding te
weight to give to the tatement.
RULE 801. Definitions That Apply to This Article; Exclusions from Hearsay
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(d) Statements That Are Not Hearsay. A statement that meets the following conditions
is not hearsay:
(2) An Opposing Party’s Statement. The statement is offered against an
opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement
on the subject;
(D) was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed; or
The statement must be considered but does not by itself establish the declarant’s
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).
Opponents: To qualify for this exemption, a party’s statement must be offered against that party.
A party cannot introduce his own out-of-court statement under this hearsay exemption.
Personal Knowledge: The exemption for party-opponent statements is so broad that it allows
introduction of an opposing party’s statements even if the opposing party had no personal
knowledge of what he was saying.
 A party seeking to preclude his own statements still has one possible objection: Rule 403.
If there is evidence that the statement is extremely unreliable a trial court may exclude
the statement on grounds that it would cause unfair prejudice substantially outweighing
any probative value.
Party’s Availability Immaterial: The hearsay exemption for party-opponent statements does not
require availability.
Rule 801(d)(2)(B): Adoption
 One common way to adopt a statement is to sign a document prepared by others.
 An individual’s silence can constitute an adoptive admission, but the circumstances must
be such that a reasonable person would speak up rather than remain silent.
o The presence of government authorities affects interpretation of a criminal
defendant’s silence.
STATEMENTS BY OPPOSING PARTIES IN THE CONTEXT OF MULTIPLE
PARTIES (Pg. 649-663)
 Two special problems when a case involves multiple plaintiffs or multiple defendants:
o When a party attempts to introduce an out-of-court statement made by a party on
the same side of the litigation.
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o The spillover effect of out-of-court statements offered against one party. What
effect do those statements have on other parties on the same side of the litigation?
Same-Side Statements: Courts are split on this issue. Some allow one defendant (or plaintiff) to
introduce out-of-court statements made by another party on the same side of the litigation; other
courts do not.
Spillover Effects in Civil Cases: In civil cases, Rule 801(d)(2) authorizes introduction of an outof-court statement against the party who made the statement, but not against other parties.
Spillover Effects in Criminal Cases: In a criminal case, Rule 801(d)(2) applies in exactly the
same way. However, courts must also consider the criminal defendant’s rights under the
Confrontation Clause of the Constitution.
 Supreme Court has held that a limiting instruction often is insufficient if a court admits
an out-of-court statement against one defendant that also incriminates other codefendants.
 Criminal defendants have a right to cross-examine confronting witnesses. A co-defendant
often invokes the Fifth Amendment privilege and does not testify. Thus, the defendant
cannot cross-examine the co-defendant on any statement he made.
 If one defendant’s out-of-court statement implicates a co-defendant, a limiting instruction
may not be enough and this might violate the co-defendant’s Sixth Amendment rights.
Bruton.
Guidelines governing the redaction of out-of-court statements implicating a co-defendant:
 A statement that explicitly names a co-defendant and implicates that co-defendant on its
face violates Bruton. The statement cannot be admitted in this form.
 A statement that simply replaces the co-defendant’s name with blanks or other obvious
marks of deletion also violates Bruton. A statement in this form inevitably will tempt the
jury to fill in the blanks with the co-defendant’s name.
 A statement that does not refer explicitly to a co-defendant, and that contains no obvious
omissions tempting the jury to fill in the gaps, satisfies Bruton. The prosecutor can admit
statements that satisfy this condition in their initial form or that can be redacted to reach
this form. These statements still are admissible only against the defendant who made the
out-of-court statement, and the judge will instruct the jury not to consider these
statements in connection with any co-defendants. But the form of the statement makes it
plausible that the jury will follow those instructions, resolving the Sixth Amendment
concerns raised by Bruton.
Adoptions, Agents, and Authorized Speakers: Rule 801(d)(2) offers several paths for admitting
out-of-court statements against a party.
 801(d)(2)(A) describes the simplest situation, admission of a statement made directly by
a party.
 801(d)(2)(B) allows introduction of statements adopted by party, including statements
endorsed through silence.
 801(d)(2)(C) permits introduction of statements made by a person that the party
authorized to speak on that subject.
 801(d)(2)(D) admits statements made by a party’s agent or employee.
34
In some cases involving multiple defendants, these provisions allow the plaintiff to introduce one
defendant’s statement against all of the defendants. Similarly, a defendant sometimes can
introduce one plaintiff’s out-of-court statement against all of the plaintiffs. The trick is to find an
adoption, authorization, or agency relationship linking the multiple parties.
Admitting a Defendant’s Out-of-Court Statement in the Presence of Codefendants:
Is the statement independently admissible against other defendants? E.g., did the codefendants
adopt the statement? Did they authorize the declarant-defendant to speak for them? Was the
declarant their agent?
 Yes  Statement is admissible against all defendants. No redaction or special
instructions are necessary.
 No 
o Civil Case  Statement is admissible against defendant who made it. Judge will
instruct jurors to ignore statement with respect to codefendants, and will redact
the statement if necessary.
o Criminal Case 
 Declarant takes the stand  Statement is admissible against defendant
who made it. Judge will instruct jurors to ignore statement with respect to
codefendants, and will redact the statement if necessary.
 Declarant does not take the stand  Court will redact statement to
eliminate references to codefendants and obvious blanks; will instruct jury
to consider statement only against declarant. If statement cannot be
redacted appropriately, prosecutor must sever trials or forego use of
statement.
HEARSAY EXEMPTION—STATEMENTS OF COCONSPIRATORS (Pg. 664-680)
Rule 801(d)(2)(E) allows a litigant to introduce the statement of one coconspirator against any
other member of the conspiracy, as long as the statement was made during the course of the
conspiracy and to further the joint enterprise.
 A conspiracy need not be charged nor criminal in nature.
 NOTE: 801(d)(2)(E) is most often used in criminal cases, but it is also available in civil
cases.
Preliminary Determinations: Under Rule 104(a), the judge decides whether the factual conditions
necessary to support admission of a statement under 801(d)(2)(E) exist.
 When admitting statements under 801(d)(2)(E), the content of the challenged statement is
not alone sufficient to support admissibility. The judge will consider the statement in
determining whether the requisite relationship exists, but some other evidence must also
help establish the relationship.
RULE 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions
is not hearsay:
35
(2) An Opposing Party’s Statement. The statement is offered against an
opposing party and:
(E) was made by the party’s [1] coconspirator [2] during and [3] in
furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).
The Meaning of Conspiracy: A party invoking the coconspirator exemption to the hearsay rule
only has to prove that the declarant and the party against whom the statement is offered were
members of a common venture.
 The declarant and defendant must have agreed to use their joint efforts in some way to
reach a common goal/enterprise.
 Statements of a coconspirator may be introduced even when there is insufficient evidence
to convict the individuals of criminal conspiracy (conspiracy doesn’t even need to be
charged).
Course of Conspiracy: A conspiracy sufficient to satisfy 801(d)(2)(E) beings as soon as two or
more people agree to pursue a common goal.
 An arrest almost always ends a conspiracy. Post-arrest statements usually are not
admissible against coconspirators under 801(d)(2)(E).
Concealment: If participants are working together to conceal the crime, then the conspiracy is
still active and statements made by one conspirator during the cover-up are admissible against all
members of the conspiracy.
 But when the members of a conspiracy disband and go their separate ways, concealing
the wrongdoing only in the sense that they keep quiet about it, the conspiracy does not
continue.
 Unilateral steps by one conspirator to cover up a crime do not signal an ongoing
conspiracy.
In Furtherance of the Conspiracy: A coconspirator’s statement does not need to further
conspiracy; it need only be in furtherance of the conspiracy. A statement may be admissible even
if it does not successfully secure some objective or otherwise advance the criminal enterprise.
Admission of a conspirator’s statement does not raise any Bruton Sixth Amendment issues with
respect to coconspirators.
 Since the conspirator speaks for all members of the conspiracy, the statement is
admissible against all of those members.
 The prosecutor does not need to redact references to other members of the conspiracy,
and the judge need not give the jury a limiting instruction.
Prosecutor’s Guide to Introducing Out-of-Court Statements Against Multiple Defendants:
36
Defendant A made an out-of-court statement incriminating himself and Defendant B. A and B
are tried jointly.
 Did B adopt A’s statement?
o Yes  Statement is admissible against A under 801(d)(2)(A) and B under
801(d)(2)(B)
o No 
 Was A an agent or employee of B (1) who made a statement concerning a matter within
the scope of the relationship and (2) while the relationship existed?
o Yes  Statement is admissible against A under 801(d)(2)(A) and B under
801(d)(2)(D).
o No 
 Did B authorize A to speak on the subject?
o Yes  Statement is admissible against A under 801(d)(2)(A) and B under
801(d)(2)(C).
o No 
 Did A make the statement (1) during a conspiracy and (2) in furtherance of that
conspiracy?
o Yes  Statement is admissible against A under 801(d)(2)(A) and B under
801(d)(2)€.
o No 
 Will A testify in the courtroom?
o Yes  Statement is admissible against A under 801(d)(2)(A). Judge will instruct
jury to disregard statement with respect to B.
o No  Prosecutor must redact statement under Burton to eliminate references to
B. Statement is then admissible against A under 801(d)(2)(A). OR prosecutor can
try A and B separately, admitting full statement against A under 801(d)(2).
ATTACKING A DECLARANT’S CREDIBILITY (Pg. 691-698)
Rule 806 gives parties a way to attack a declarant’s credibility, whether or not the declarant
appears as a witness.
 It applies to all hearsay statements admitted under an exception, as well as to statements
governed by Rule 801(d)(2)(C), (D), or (E).
o Does not allow impeachment of declarant when a party offers the declarant’s
statement for a purpose other than to prove the truth of the matter asserted.
o Does not apply when the court admits prior statements by a witness under Rule
801(d)(1).
o Does not apply to out-of-court statements made or adopted by an opposing party.
Rule 801(d)(2)(A) and (B).
 Allows a party to attack a declarant’s credibility by introducing any evidence that would
be admissible if the declarant had testified as a witness.
o This evidence includes:
 Evidence of the declarant’s bias, prejudice, or interest in the case.
 Statements made by the declarant that are inconsistent with the hearsay
statements. Rule 613.
37





Evidence that the declarant lacks personal knowledge (Rule 602) or the
capacity to testify truthfully (Rule 603).
 Reputation or opinion evidence, given by a character witness, that the
declarant is untruthful (Rule 608(a)).
 Any criminal convictions allowed by Rule 609.
o Some courts, but not all, allow parties to impeach declarants using extrinsic
evidence of a declarant’s dishonest acts. Rule 608(b) prohibits this type of
evidence when offered against a live witness, but extrinsic evidence may be the
only way to reveal a non-testifying declarant’s dishonest acts.
Once a declarant’s credibility has been attacked, the other party may rehabilitate the
declarant in any way that is allowed with witnesses.
Allows a party to present a declarant’s inconsistent statements without giving the
declarant an opportunity to “explain or deny” those inconsistencies.
Allows any party to impeach a hearsay declarant, just as Rule 607 permits any party to
impeach a witness.
Recognizes that parties sometimes use a hearsay exception to avoid cross-examination of
a witness. Allows the opposing party to call the declarant as a witness and cross-examine
the declarant about the statement.
RULE 806. Attacking and Supporting the Declarant’s Credibility
When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has
been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by
any evidence that would be admissible for those purposes if the declarant had testified as a
witness. The court may admit evidence of the declarant’s inconsistent statement or conduct,
regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.
If the party against whom the statement was admitted calls the declarant as a witness, the party
may examine the declarant on the statement as if on cross-examination.
RULE 805—HEARSAY WITHIN HEARSAY (Pg. 547-553)
Rule 805 allows hearsay within hearsay to be admitted as long as each out-of-court statement is
admissible under an exception.
 However, it may be difficult to lay the foundation for the original out-of-court statement
because the witness testifying on the stand may not know much about the context of the
original declarant’s statement.
RULE 805. Hearsay Within Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.
38
HEARSAY EXCEPTIONS RULE 803
(Rule 803)
Hearsay exceptions are based on the reliability and need for certain hearsay statements.
A litigant may invoke Rule 803 exceptions even if the declarant is available to testify.
HEARSAY EXCEPTIONS—PRESENT SENSE IMPRESSIONS AND EXCITED
UTTERANCES (Pg. 490-503)
Present sense impressions are statements that describe an event as it unfolds.
Excited utterances come from excited people responding to a startling event.
These statements have special indicia of reliability.
 A person who described an event as it unfolds before her lacks time to formulate a lie.
 A person responding to a startling event has little opportunity to concoct falsehoods.
Present Sense Impression:
 Must describe or explain, rather than analyze, a contemporaneous event.
 Statement must be made during or immediately after—immediately usually means only a
few seconds, never more than a few minutes.
o Courts seem to tie the permissible amount of time to what the declarant was doing
during those intervening minutes or seconds.
 If possible, show that the statement was made in the presence of others and/or
corroborate the statement with other evidence (though not necessary).
Excited Utterance
 Statement must relate to a startling event.
 Genuine excitement or stress necessary (subjective standard).
 Declarant must speak while in an excited state.
o Not sufficient time between the event and the statement for the declarant to make
up a story as the declarant was under the stress of excitement at the time the
statement was made.
 If possible, show that the statement was made in the presence of others and/or
corroborate the statement with other evidence (though not necessary).
o If the defendant is not identified, courts will look more closely for corroboration.
 Written statements typically cannot be excited utterances.
Foundation: The key to winning admission of an excited utterance or present sense impression is
to lay the proper foundation.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
39
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(1) Present Sense Impression. A statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused.
HEARSAY EXCEPTION—STATE OF MIND (Pg. 504-522)
Exception covers statements about the declarant’s “then-existing” state of mind.
 Four types if internal states that a declarant might describe: (1) emotional, (2) sensory, (3)
physical condition, or (4) catch-all state of mind.
 Specific examples: (1) motive, (2) intent, (3) plan, (4) mental feeling, (5) pain, and (6)
bodily health.
 Courts seem to require that the statement be made spontaneously.
 Statement may not explain why the declarant had the state of mind.
 Statements of memory or belief are not admissible under this exception when they are
offered to prove the fact remembered or believed.
o Rule 803(3) adds an exception to the caveat relating to statements of memory or
belief: An out-of-court statement of memory or belief is admissible to prove the
fact remembered or believed if that fact relates to the validity of the declarant’s
will.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the
declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional,
sensory, or physical condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed
unless it relates to the validity or terms of the declarant’s will.
Circumstantial Evidence of Mental State: Statements about external facts or events don’t qualify
as expressions of a “state of mind” admissible under Rule 803(3). But those statements
sometimes are admissible to prove state of mind.
I Think, I Believe, I Remember: Often introduce statements about external facts or events and
not expressions of a state of mind.
Looking Back: Typically not state of mind. But a person’s current mental states sometimes offers
circumstantial evidence of their prior mental condition.
40
Looking Forward: Hearsay expressions about then-existing mental states may be admitted to
help prove subsequent thoughts or acts.
Looking Forward … with Someone Else: Parties may use a declarant’s state of mind to prove
subsequent actions by another person (courts split on this issue).
HEARSAY EXCEPTION—MEDICAL TREATMENT (Pg. 523-535)
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis or
treatment; and
(B) describes medical history; past or present symptoms or sensations; their
inception; or their general cause.
Who Is the Declarant?: The declarant is usually the patient needing medical diagnosis, but it
could also be a family members who bring their children, spouses, parents, and other relatives for
medical care.
Who Is the Audience? Doesn’t have to be a physician or other medical professional as long as
the declarant made the statement for the purposes of medical diagnosis or treatment.
In Preparation of Litigation: Allows parties to admit statements made to doctors who they
consulted purely to prepare for litigation. A patient may even obtain this type of diagnosis after
the condition has been treated and cured by other doctors.
Cause and Source v. Fault and Blame: Includes statements that a patient makes describing the
“inception” or “general cause” of the condition when those statements are pertinent to medical
care. This recognizes that proper diagnosis and treatment often require knowledge about how the
condition arose.
 But statements blaming specific individuals for the cause, or attributing a particular
degree of fault to those individuals, usually are not relevant to medical care.
Psychologists and Psychiatrists: Most courts assume Rule 803(4) includes statements made for
purpose of obtaining medical treatment when the symptoms are psychological.
Medical Treatment for Domestic or Sexual Abuse: A few courts have begun to allow statements
about an abuser’s identity to be admissible under 803(4).
41
HEARSAY EXCPETION—BUSINESS RECORDS (Pg. 554-568)
Rule 803(6) allows admission of records kept by an organization or institution.
 A business records is admissible if:
o It was recorded by an individual with personal knowledge or transmitted to the
record-keeper by someone with personal knowledge, and the transmitted and
record-keeper were both members of the organization.
o It was kept in the course of a regularly conducted activity.
o It is the organization’s regular practice to keep the record.
 A custodian or other qualified witness must testify about all three of these requirements
to lay the foundation for admission of a business record.
 Even when a record meets all of these requirements, a court may find it too untrustworthy
to admit. Burden of proof is on the opponent to show the record’s unreliability.
o Courts usually exclude documents under this caveat when they were prepared in
anticipation of litigation.
o Record that contains false information may be excluded when neither the exact
nature of the falsehood, nor the true information, can be shown to the trier of fact.
o Record that is not the final version of a document may be excluded.
 Watch out for double hearsay in connection with business records. Statements by
customers and third parties are admissible only if they fall within another hearsay
exception; they do not qualify under 803(6) even when they appear within a business
record.
o If the information originated from a member of the organization, and if it traveled
a route composed exclusively of organization insiders, then the information falls
within 803(6).
o Information originating from outsiders does not fall within 803(6).
o Some courts allow another business’s record to come in if the first business relied
on the record.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted
by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
42
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) neither the opponent does not show that the source of information nor or the
method or circumstances of preparation indicate a lack of trustworthiness.
What Is a Business?: Rule applies to any “business, organization, occupation, or calling, whether
or not for profit.” Self-employed individuals qualify as “businesses.”
 Includes a person’s own diaries and the records of a criminal enterprise.
Who is a Custodian or Other Qualified Witness?: A witness who can lay a foundation for the
documents. The person who lays the foundation does not have to be the person who made the
record, nor does the witness even need to know exactly who made the record, as long as the
witness knows the organization’s recordkeeping practices.
Regularly Conducted Business Activities and Regular Practices: Two “regularity” requirements:
(1) the record was “kept in the course of a regularly conducted activity”; and (2) that “making
the record was a regular practice of that activity” (record need not be made daily or weekly, but
there must be some regularity or routine).
HEARSAY EXCEPTION—PUBLIC RECORDS (Pg. 569-580)
NOTE: Any document falling within both 803(6) and 803(8) must meet 803(8)’s requirements
for admission.
Rule 803(8) allows parties to admit public records into evidence for the truth of the matter
asserted.
 Subsection (A)(i): Admits “activities” of any public office.
o Refers to documentation of all the activities engaged in by the public agency.
o For example, records of the money it has spent, the personnel it has hired, the
meetings it has held, the votes it has taken, and the decisions it has made.
 Subsection (A)(ii) admits records of “a matter observed” by any public agency if that
agency has a duty to report.
o Includes a wide range of concrete facts that a public agency might observe,
ranging from inches of rainfall to the number of travelers passing a checkpoint.
o Excludes information that third parties observe and report to agencies.
o Excludes all records of observations made by law-enforcement personnel when
offered in a criminal case.
 Courts have construed this exception to limit only the prosecutor. The
defendant may offer records fitting this subsection, even if they were made
by law-enforcement personnel.
 Courts have narrowed (A)(ii) and found that it prevents prosecutors from
introducing records of law-enforcement observations only when they were
“made in an adversarial setting.” Courts have allowed prosecutors to
43

introduce law-enforcement records that include observations of “routine
non-adversarial matters.”
Subsection (A)(iii): Admits “factual findings from a legally authorized investigation.”
o Results of a government investigation are not admissible against a defendant in a
criminal case.
o Courts have interpreted “factual findings” broadly to include the opinions and
conclusions of the investigator, as well as the underlying facts.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including,
in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
(B) neither the source of information nor or other circumstances indicate a lack of
trustworthiness.
Lack of Trustworthiness: Four factors a court should consider in determining whether a public
record of an investigation is trustworthy:
 Timeliness of the investigation;
 Special skill or experience of the official conducting the investigation;
 Whether a hearing was held by the public agency prior to the report being made; and
 Whether the motivation of the public agency is suspect—for example, whether the report
was made in anticipation of litigation.
Hearsay-Within-Hearsay: Public records frequently contain statements by third parties. Those
statements are hearsay within hearsay, governed by Rule 805.
Authentication: Pursuant to Rule 902, Rule 803(8) records will almost always be selfauthenticating.
HEARSAY EXCEPTIONS—OTHER 803 EXCEPTIONS (Pg. 581-593)
44
Rules 803(7) and 803(10): Admit the absence of a business record or a public record to show
that the event not recorded did not happen.
 The absence of a record is not hearsay because silence rarely constitutes a statement. But
Rules 803(7) and 803(10) eliminate any confusion over this issue by allowing parties to
show the absence of a business record or public record.
 The requirements of these rules assure the reliability of a record’s absence.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is
not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the opponent does not show that the possible source of the information
nor or other circumstances indicate a lack of trustworthiness.
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that
a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record
or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides
written notice of that intent at least 14 days before trial, and the defendant does
not object in writing within 7 days of receiving the notice — unless the court sets
a different time for the notice or the objection.
Rule 803(9): Deals with records kept of birth, deaths, marriages, etc. Requirements:
 Report of these vital statistics exist in some form;
 Report was made to a public office; and
 Report was made pursuant to a requirement of law.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
45
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported
to a public office in accordance with a legal duty.
Rule 803(16): Admits “ancient documents,” documents that are at least twenty years old and
have been properly authenticated.
 The exception does not encompass hearsay contained within the documents; separate
exceptions must support the admission of any hearsay-within-hearsay.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(16) Statements in Ancient Documents. A statement in a document that was prepared
before January 1, 1998, and whose authenticity is established.
Rule 803(17): admits directories, lists, and other published compilations if they are generally
relied on by the general public or by people in a specific occupation.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
(17) Market Reports and Similar Commercial Publications. Market quotations, lists,
directories, or other compilations that are generally relied on by the public or by persons
in particular occupations.
Rule 803(18): Admits “learned treatises,” texts that are considered reliable and authoritative in a
given field. Usually an expert witness certifies the text as reliable, although the judge sometimes
takes judicial notice of that fact.
 A party cannot introduce the text itself into evidence. Instead, the party must use the
treatise while examining or cross-examining an expert witness. In response to the
lawyer’s questions, the witness may read portions of the treatise into evidence.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
46
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement
contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on crossexamination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission
or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
47
HEARSAY EXCEPTIONS RULE 804 & 807
(Rules 804 and 807)
RULE 804 INTRODUCTION—WHAT IS UNAVAILABILITY? (Pg. 594-600)
Rule 804 applies on if the declarant is “unavailable as a witness.”
 Determining whether the declarant is unavailable is a Rule 104(a) hearing.
 The burden of proving unavailability is on the proponent of the evidence (by a
preponderance of the evidence).
Court must make an on the record finding that the witness is unavailable.
According to Rosen, to be unavailable the declarant must be:
 Dead.
 Asserting a valid privilege.
 Outside of the jurisdiction of the court (i.e., cannot be served).
 Attempts made to serve witness have failed.
 Has disappeared (and the proponent did not make it happen).
 Refuses to testify, even if held in contempt.
 Has a valid lack of memory.
 Cannot testify because of physical or mental reasons.
RULE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if
the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement
because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so [judge holds
declarant in contempt];
(3) testifies to not remembering the subject matter [witness must testify he has absolutely
no recollection of the subject matter];
(4) cannot be present or testify at the trial or hearing because of death or a then-existing
infirmity, physical illness, or mental illness [physical or mental illness must be
sufficiently disabling that the declarant cannot come to the court to testify and there is
little likelihood of recovery within a reasonable time]; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by
process or other reasonable means, to procure [must use any “reasonable means,: in
addition to serving a subpoena, to persuade the declarant to attend the trial; must use
reasonable means to at least take the declarant’s deposition]:
48
(A) the declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception
under Rule 804(b)(2), (3), or (4).
[Most often used when the party cannot find the declarant after making a diligent
search or the declarant refuses to come to court and is currently outside the court’s
jurisdiction.]
But this subdivision (a) does not apply if the statement’s proponent procured or
wrongfully caused the declarant’s unavailability as a witness in order to prevent the
declarant from attending or testifying.
Privilege: A party usually must call the declarant to the stand and question her. If the declarant
asserts a privilege and the judge agrees that the privilege applies, then the declarant is
unavailable under 804(a)(1).
Refusal to Testify and Lack of Memory: A party must call the declarant to the stand. After the
declarant refuses to testify or states her lack of memory, the judge will find the declarant
unavailable.
 Parties make this showing outside the jury’s presence.
Death or Illness: To establish death, a party usually introduces a death certificate or other
evidence of the declarant’s death. To establish physical or mental illness, the proponent of the
evidence must introduce documentary evidence or live testimony to show the declarant’s
condition.
Absence: A party must show a good faith, genuine effort to procure the declarant’s attendance.
Proponent must persuade the judge that he used other reasonable means to persuade the declarant
to testify at trial.
HEARSAY EXCEPTION—FORMER TESTIMONY (Pg. 601-611)
Rule 804(b091) creates a hearsay exception for prior testimony when a witness is unavailable to
offer live testimony.
In a criminal case, the party with the opportunity to question the declarant in the prior hearing
must have been the same party as the opposing party in the current case.
In civil cases, the opposing party or his predecessor in interest need have an opportunity and
similar motive to cross-examine the witness.
 Courts tend to broadly define predecessor in interest, doesn’t just mean in “privity.”
49
RULE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose
predecessor in interest had — an opportunity and similar motive to develop it by
direct, cross-, or redirect examination.
Similar Motives: Four favors to consider when determining whether an opposing party had a
similar motive to develop a witness’s testimony in the prior proceeding:
 Type of proceeding in which the testimony was given;
 Trial strategy;
 Potential penalties or financial stakes; and
 Number of issues and parties.
Rules 804(b)(1) and 801(d)(1)(A):
Prior Inconsistent
Statements by Witness
801(d)(1)(A)
Declarant:
 Must testify at current
hearing or trial
 Must be subject to
cross-examination
concerning the
statement
Content of Statement:
 Inconsistent with
current testimony
Context of Prior Statement:
 Must have been given
under penalty of
perjury
 Made at any prior
trial, hearing, other
proceeding, or
deposition
50
Former Testimony
801(b)(1)

Must be unavailable

Any content

Must have been given
as a witness, which
implies that it was
under penalty of
perjury
Made during a trial,
hearing, or deposition
at which the current
opponent (or, in a
civil case, a
predecessor in
interest) had an

opportunity and
similar motive to
develop the testimony
HEARSAY EXCEPTION—DYING DECLARATIONS (Pg. 612-617)
Rule 804(b)(2) recognizes a hearsay exception for dying declarations but it limits the exception
in several ways.
 Admits dying declarations only in civil cases and homicide prosecutions; parties cannot
rely on this exception in most criminal cases.
 Only admissible if they concern the cause or circumstances of the declarant’s death.
 Declarant must believe death is imminent.
 Declarant must be unavailable to testify (exception does not require that the declarant
actually die).
RULE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in
a civil case, a statement that the declarant, while believing the declarant’s death to be
imminent, made about its cause or circumstances.
Proving State of Mind: In determining whether a declarant sincerely believed death was
imminent, courts most often consider:
 Statements by the declarant.
 Statements made by medical personnel and others to the declarant.
 Nature and extent of the wounds or illness.
 Length of time between the statement and the declarant’s death.
 Opinion of medical personnel who treated the declarant about the declarant’s death.
HEARSAY EXCEPTION—STATEMENT AGAINST INTEREST (Pg. 618-627)
Rule 804(b)(3) allows the judge to admit out-of-court statements that were against the
declarant’s interest at the time they were made.
 Requires corroboration in criminal trials. The party offering the statement must point to
corroborating circumstances that demonstrate the trustworthiness of the third party’s
alleged confession.
o Some courts require corroboration in civil trials as well.
 If only part of a statement is against the declarant’s interest, the court will redact other
portions before admitting the “against interest” portion.
RULE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness
51
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the
person believed it to be true because, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had so great a tendency to
invalidate the declarant’s claim against someone else or to expose the declarant to
civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability.
Corroboration in Criminal Trials: Courts consider six factors in determining whether a statement
is sufficiently trustworthy:
 Whether the declarant had pled guilty before making the statement or was still exposed to
prosecution (that is, how far against the declarant’s interest the statement was at the
time);
 Declarant’s motive in making the statement and whether there was a reason for the
declarant to lie;
 Whether the declarant repeated the statement and did so consistently;
 Part or parties to whom the statement was made;
 Relationship of the declarant with the accused; and
 Nature and strength of the independent evidence relevant to the conduct in question.
HEARSAY EXCEPTION—STATEMENT OF PERSONAL OR FAMILY HISTORY
RULE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(4) Statement of Personal or Family History. A statement about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce,
relationship by blood, adoption, or marriage, or similar facts of personal or family
history, even though the declarant had no way of acquiring personal knowledge
about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant
was related to the person by blood, adoption, or marriage or was so intimately
52
associated with the person’s family that the declarant’s information is likely to be
accurate.
HEARSAY EXCEPTION—FORFEITURE (Pg. 628-634)
If a party uses physical threats or other wrongful behavior to prevent a witness from testifying,
the least we can do is admit the witness’s hearsay statements against that party.
 Rule aims to prevent wrongdoers from profiting from their misconduct.
RULE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability. A statement offered against a party that wrongfully caused — or
acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did
so intending that result.
What Is “Wrongfully Causing”?: Courts have interpreted the “wrongfully” language to mean
“coercion, undue influence, or pressure to silence testimony and impeded the truth-finding
function of trials.”
 Merely persuading a witness ti claim a privilege or forego testifying is not wrongful. But
when persuasion becomes undue pressure, the party’s actions trigger the forfeiture
exception.
Intent: As long as the opposing party was “motivated in part by a desire to silence the witness,”
the forfeiture exception applies.
 If a party acts wrongfully with the intent to silence a witness in one case, that intent
“carries over” to other cases.
 May apply when a party intimidates a potential witness.
RESIDUAL EXCEPTION (Pg. 681-690)
Rule 807 gives judges flexibility by allowing them to admit hearsay that falls outside the
standing exceptions as long as the evidence has sufficient “guarantees of trustworthiness” and is
the best available way to prove a needed fact.
 The residual hearsay exception is used very rarely, only in exceptional circumstances.
RULE 807. Residual Exception
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the
rule against hearsay even if the statement is not specifically covered by a hearsay exception in
Rule 803 or 804:
53
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that
the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an
adverse party reasonable notice of the intent to offer the statement and its particulars, including
the declarant’s name and address, so that the party has a fair opportunity to meet it.
Trustworthiness: Courts consider numerous factors when determining whether a statement has
sufficient guarantees of trustworthiness:
 Whether the statement was made under oath.
 Whether the declarant had firsthand knowledge of facts in the statement.
 Whether the declarant ever recanted the statement.
 Whether other evidence corroborates the statement.
 Whether that corroborating evidence is subject to cross-examination.
 Whether other evidence undermines or contradicts the statement.
 Whether the declarant had any incentive to lie when making the statement.
Near Miss Problem: What if a hearsay statement just misses qualifying as a Rule 803 or 804
exception? Does that bar its admission under Rule 807?
 Courts are split.
o Some hold that a near miss is covered by the exception under which it almost
qualifies.
o Others object that a near miss is still a miss and Rule 807 was not designed to
allow extensions of the Rule 803 and 804 exceptions, but instead to cover
situations where the hearsay simply does not fit an existing exception;
Examples:
 Desk calendars and diaries.
 Deceased co-defendant’s statement to his lawyer.
 Statement of co-defendant at time of arrest.
 Statement of victim to her mother.
 Trial testimony.
54
HEARSAY CRAWFORD
THE SIXTH AMENDMENT AND HEARSAY (Pg. 699-730)
The Sixth Amendment guarantees each criminal defendant the right “to be confronted with the
witnesses against him.” [Confrontation Clause.]
Under Crawford v. Washington (S. Ct. 2004), a criminal defendant has the right to cross-examine
any person who makes a “testimonial” statement against him.
Confrontation and Crawford Basics:
 Out-of-court statements must satisfy both the hearsay rule and the Confrontation Clause.
 The Confrontation Clause limits only evidence offered in criminal cases against a
defendant.
 A prosecutor’s Sixth Amendment obligations:
o Prosecutor may introduce non-testimonial hearsay as long as those statements
comply with the hearsay rules. The Sixth Amendment does not limit the
admission of nontestimonial hearsay.
o The prosecutor may introduce testimonial hearsay if the statements comply with
the hearsay rules, and the declarants is available as a witness. Under those
circumstances, the defendant has a chance to cross-examine the declarant about
the prior testimonial statement.
o If the hearsay statement is testimonial and the declarant is unavailable at trial,
the prosecutor may offer the statement only if the defendant had a prior
opportunity to cross-examine the declarant.
 Three key questions:
o Is the proffered statement testimonial?
o If so, is the defendant available for cross-examination?
o If the statement is testimonial and the declarant is not currently available for
cross-examination, can the prosecutor establish both that the declarant is
unavailable and that the defendant had a prior opportunity to cross-examine that
defendant?
What Statements Are Testimonial?:
 Testimonial: Statements that resemble a witness’s in-court testimony.
o A testimonial statement is a “solemn declaration or affirmation made for the
purpose of establishing or proving some fact.”
o Testimonial statements are “made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for
use at a later trial.”
o Testimonial statements have “a primary purpose of creating an out-of-court
substitute for trial testimony.”
o The “primary purpose” of testimonial statements “is to establish or prove past
events potentially relevant to later criminal prosecution.
 Non-testimonial: Statements that do not share features of in-court testimony. Court will
consider these factors:
55
o
o
o
o
Presence of an ongoing emergency.
Informality of the situation.
Age of the declarant.
Absence of other indicators that the primary purpose of the conversation was to
gather evidence for use in prosecution.
Testimonial Examples:
 Formal statements during litigation.
 Statements responding to conventional police investigation.
Non-Testimonial Examples:
 Business records.
 Statements in furtherance of a conspiracy (because advance a criminal endeavor and not
“made under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial”).
 Defendants’ own statements (cannot confront yourself).
 Statements admitted to prove a point other than the truth of the matter asserted.
o Often expert testimony. Williams v. Illinois (S. Ct. 2012).
 Statements by very young children will rarely, if ever, implicate the Confrontation clause.
 According to Rosen, courts have refused to expand Crawford to:
o Statements made to friends or acquaintances.
o Statements made to an undercover informant are not covered if the declarant does
not know the person is an informant.
o Co-conspirator’s statements not covered if Rule 801(d)(2)(e) met.
o Sentencing hearings or supervised release hearings.
o Customer complaints to a business.
o Testimony about conduct (informant purchasing drugs) that does not mention
statements made by the informant.
o Defendant’s own statements to police.
o Non-accusatory statements.
o Business records.
o Autopsy reports.
Hard Cases:
 Statements to law enforcement outside traditional interrogation.
o If the primary purpose of the speaker’s interaction with law enforcement is “to
establish or prove past events potentially relevant to later criminal prosecution,”
the then the statement is testimonial.
o If the primary purpose of the speaker’s interaction with law enforcement is
another purpose, such as “to enable police assistance to meet an ongoing
emergency,” then the statement is non-testimonial.
 Informal encounter with law enforcement also likely to be nontestimonial.
o Primary purpose test is an objective one.
56


o A statement made to a person who is not in law enforcement could still be
testimonial in nature if it has the primary purpose of creating evidence to be used
in a defendant’s prosecution (i.e., statements made to social workers, teachers,
etc.). Ohio v. Clark (S. Ct. 2015).
 But statements made to someone who is not principally charged with
uncovering and prosecuting criminal behavior are significantly less likely
to be testimonial than statements given to law enforcement officers.
Laboratory reports prepared as part of a criminal investigation.
o Supreme Court has narrowly ruled that these are testimonial in nature and the
analyst who performed the tests or created the laboratory reports must testify to
satisfy the defendant’s Crawford rights. Melendez-Diaz v. Massachusetts (S. Ct.
2009); Bullcoming v. New Mexico (S. Ct. 2011).
 Melendez-Diaz Found that certificates of forensic chemists that a
substance tested was cocaine, submitted in lieu of the testimony of the
chemists, violated Crawford.
 Bullcoming found that a lab report of results of testing blood for an
alcohol level was inadmissible under Crawford when the technician who
did the testing was not called as a witness and another technician, who
played no part in the testing, was called to introduce the record as a
business record.
o But according to Rosen’s notes, in Williams v. Illinois (S. Ct. 2012), the Court
ruled that expert testimony does not violate the Confrontation Clause when an
expert testifies for the prosecution in the criminal case and the defendant has the
opportunity to cross-examine the expert about any statements that are offered for
their proof. Out-of-court statements that are used by the expert solely for the
purpose of explaining the assumptions on which the expert’s opinion rests are not
offered for their truth and thus fall outside the scope of the Confrontation Clause.
 The Court also found that a DNA test matching the defendant to DNA
found on a sexual assault victim did not violate the Confrontation Clause
when the analyst who created the report did not testify.
 Difference that no prepared in anticipation of criminal trial? Just to
find an ID?
Statements among private parties.
o Supreme Court has not considered yet whether statements among private parties
can be testimonial, but dicta strongly suggests that most statements among private
parties are not testimonial.
Availability and Cross-Examination:
 Currently subject to cross examination: If a witness is subject to cross-examination in the
courtroom, the Sixth Amendment allows the prosecutor to introduce any hearsay
statements by that witness—even if the statements were testimonial.
o A defendant may have sufficient opportunity to confront a witness even if the
witness remembers neither his prior statement nor the facts underlying the
statement.
o Witnesses who suffer real or feigned memory loss—but who respond willingness
to questions on the stand—are available for cross-examination.
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

o A witness who invokes a privilege in response to cross-examination usually is not
available.
Unavailability and prior cross examination: If a declarant is not subject to crossexamination in the current trial, the prosecutor must prove (1) that the declarant is, in
fact, unavailable and (2) that the defendant had a prior opportunity and motive to crossexamine the declarant.
Exceptions to confrontation:
o Forfeiture by wrongdoing: If the defendant kills a witness to prevent him from
testifying in court, then she implicitly waives her right to confront that witness.
Giles v. California (S. Ct. 2008).
o Dying declarations: Dying declarations require no confrontation.
Confrontation Clause Analysis:
Is the out-of-court statement offered against a criminal defendant?
 Yes  Is the statement offered for the truth of the matter asserted?
o Yes  Is the statement admissible under the opposing party, dying declaration, or
forfeiture exceptions?
 Yes  ADMISSIBLE under the Confrontation Clause, but double check
admissibility under the hearsay rule.
 No  Is the statement testimonial?
 Yes  Is the declarant available at trial?
o Yes  ADMISSIBLE under the Confrontation Clause, but
double check admissibility under the hearsay rule.
o No  Did the defendant have a prior opportunity and
motive to cross examine the declarant about the statement?
 Yes  ADMISSIBLE under the Confrontation
Clause, but double check admissibility under the
hearsay rule.
 No  INADMISSIBLE under the Confrontation
Clause.
 No  ADMISSIBLE under the Confrontation Clause, but double
check admissibility under the hearsay rule.
o No  ADMISSIBLE under the Confrontation Clause, but double check
admissibility under the hearsay rule.
 No (civil case or statement offered against the government)  ADMISSIBLE under
the Confrontation Clause, but double check admissibility under the hearsay rule.
Hearsay exceptions that never raise Confrontation Clause issues:
 801(d)(1). Declarant-Witness’s Prior Statement.
 801(d)(2). Opposing Party’s Statement.
 803(5). Recorded Recollection.
 803(6). Records of a Regularly Conducted Activity (Business Records).
 804(b)(1). Former Testimony.
 804(b)(2). Statement Under the Belief of Imminent Death (Dying Declarations).
 804(b)(6). Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability (Forfeiture).
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Hearsay exceptions that rarely raise Confrontation Clause issues but might:
 803(4). Statement Made for Medical Diagnosis or Treatment.
 803(7). Absence of a Record of a Regularly Conducted Activity.
 803(17). Market Reports and Similar Commercial Publications.
 803(18). Statements in Learned Treatises, Periodicals, or Pamphlets.
Hearsay exceptions that often raise Confrontation Clause issues:
 803(1) and (2). Present Sense Impression and Excited Utterance.
 803(3). Then-Existing Mental, Emotional, or Physical Condition.
 803(8). Public Records.
 803(10). Absence of a Public Record.
 803(16). Statements in Ancient Documents.
 804(b)(3). Statement Against Interest.
 807. Residual Exception.
59
DOCUMENTS
(Rules 1001, 1002, 1003, 1004, 106, 1006, 1007, and 1008)
RULE OF COMPLETENESS (Pg. 287-291)
To prevent litigants from misleading the jury through piecemeal use of documents, Rule 106
establishes a rule of completeness. If one party introduces part of a document, Rule 106 allows
the opponent to immediately introduce other portions “that in all fairness ought to be considered
at the same time” as the first portion.
 Some courts interpret Rule 106 simply to affect timing; the opponent may offer the
remaining portions of the statement immediately, but those portions may not violate any
other Rule. Other courts read Rule 106 as a rule that broadens admissibility; if a party
introduces one part of a document or recorded statement, the opponent may offer other
portions regardless of their admissibility under other rules.
RULE 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party may require
the introduction, at that time, of any other part — or any other writing or recorded statement —
that in fairness ought to be considered at the same time.
Oral Statements: Although Rule 106 applies only to writings and recorded statements, courts
sometimes invoke other rules to create a similar completeness principle for other evidence. Some
courts use Rule 403 to admit missing portions of an oral statement when necessary to avoid
unfair prejudice or confusion. Other courts use Rule 611(a), which gives the trial judge power to
control the presentation of evidence.
BEST EVIDENCE (Pg. 885-903)
Principle of the best evidence rule: If a party wants to prove the content of a document, then the
party should produce the document itself.
 The content of a writing, recording, or photograph is more detailed and difficult to
describe than most events or objects that witnesses relate in the courtroom.
 Writings, recordings, and photographs are relatively easy to produce, especially since
modern rules allow for liberal use of duplicates.
 The rule reduces opportunities for fraud and distortion.
RULE 1001. Definitions That Apply to This Article
In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any
form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any
manner.
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(c) A “photograph” means a photographic image or its equivalent stored in any form.
(d) An “original” of a writing or recording means the writing or recording itself or any
counterpart intended to have the same effect by the person who executed or issued it. For
electronically stored information, “original” means any printout — or other output
readable by sight — if it accurately reflects the information. An “original” of a
photograph includes the negative or a print from it.
(e) A “duplicate” means a counterpart produced by a mechanical, photographic,
chemical, electronic, or other equivalent process or technique that accurately reproduces
the original.
ORIGINAL
Rule 1002 exists to prevent inaccuracies which occur either in the copying of documents or
which arise from an inaccurate memory.
Photo: If you are not using a photo to prove the contents of the photo then the best evidence rule
does not apply and the Rules only require that the photo accurately reproduces the scene viewed.
 Compare a bank surveillance photo which identifies the robber versus a photo of the bank
used to show the general layout of the bank.
Rule 1002 does not apply if evidence of the event exists independently of the writing and the
proponent of the evidence proceeds using that independent source:
 Oral confession that is also reduced to writing.
 Marriage.
 Payment of a debt.
 Purchase.
 Conversations.
RULE 1002. Requirement of the Original
An original writing, recording, or photograph is required in order to prove its content unless
these rules or a federal statute provides otherwise.
RULE 1001. Definitions That Apply to This Article
(d) An “original” of a writing or recording means the writing or recording itself or any
counterpart intended to have the same effect by the person who executed or issued it. For
electronically stored information, “original” means any printout — or other output
readable by sight — if it accurately reflects the information. An “original” of a
photograph includes the negative or a print from it.
DUPLICATE
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Rule 1003 applies the admission of duplicates except when:
 (1) There is a real issue about the authenticity of the original.
o Illegible documents.
o Reason to suspect the document because it is not in the form usually used or the
contents do not seem correct.
 (2) Under the circumstances it would be unfair to allow the introduction of the duplicate.
o Only a portion of the document is presented and the remainder cannot be
produced.
Rule 1003 does not require the proponent to show why the original is not being presented.
Party opposing the introduction of a duplicate has the burden of raising an objection under the
best evidence rule.
A handwritten or other personally crafted copies are not duplicates.
If only a small portion of a transcript or other lengthy document is relevant, a party may copy the
relevant pages and introduce them, rather than tearing the pages out of the original or burdening
the jury with the entire document.
Allows parties to enhance writings, recordings, or photographs by enlarging them, using
electronic means to eliminate background noise, and adjusting the brightness and contrast in
images.
RULE 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as the original unless a genuine question is raised
about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
RULE 1001. Definitions That Apply to This Article
(e) A “duplicate” means a counterpart produced by a mechanical, photographic,
chemical, electronic, or other equivalent process or technique that accurately reproduces
the original.
EXCEPTIONS
RULE 1004. Admissibility of Other Evidence of Content
An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith
[negligence does not equal bad faith];
(b) an original cannot be obtained by any available judicial process;
62
(c) the party against whom the original would be offered had control of the original; was
at that time put on notice, by pleadings or otherwise, that the original would be a subject
of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue [Rule
1002 does not apply to collateral matters].
PROOF BY ADMISSION
If an opponent admits the contents of a writing, recording, or photograph, then the party does not
have to produce the original document or account for its absence.
RULE 1007. Testimony or Statement of a Party to Prove Content
The proponent may prove the content of a writing, recording, or photograph by the testimony,
deposition, or written statement of the party against whom the evidence is offered. The
proponent need not account for the original.
PUBLIC RECORDS
Rosen: Rule 1005 states that public records of the sort covered by Rule 902 may always be
proven with a duplicate.
Offers three avenues for proving the content of a public record: (1) introduction of a copy that
has been certified under Rule 902(4); (2) testimony by a witness who has compared a copy with
the original; or (3) other evidence, when one of the first two methods is not obtainable by
reasonable diligence.
RULE 1005. Copies of Public Records to Prove Content
The proponent may use a copy to prove the content of an official record — or of a document that
was recorded or filed in a public office as authorized by law — if these conditions are met: the
record or document is otherwise admissible; and the copy is certified as correct in accordance
with Rule 902(4) or is testified to be correct by a witness who has compared it with the original.
If no such copy can be obtained by reasonable diligence, then the proponent may use other
evidence to prove the content.
SUMMARIES
The underlying documents used in summaries must be admissible in the trial. This does not
require that they actually have been admitted into evidence for the jury to see, only that they are
admissible.
 If the underlying documents are not admissible, the proponent may still be able to use a
summary for demonstrative purposes under Rule 611(a).
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Must authenticate the summary—generally through the testimony of the person who created the
summary.
A summary that is admissible under Rule 1006 is treated as evidence.
RULE 1006. Summaries to Prove Content
The proponent may use a summary, chart, or calculation to prove the content of voluminous
writings, recordings, or photographs that cannot be conveniently examined in court. The
proponent must make the originals or duplicates available for examination or copying, or both,
by other parties at a reasonable time and place. And the court may order the proponent to
produce them in court.
WHO DECIDES?
Rule 1008 supplements Rule 104 with several guidelines that apply particularly to preliminary
factual decisions underlying the best evidence rule.
RULE 1008. Functions of Court and Jury
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for
admitting other evidence of the content of a writing, recording, or photograph under Rule 1004
or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue
about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.
Photographs: Show that the photograph is a true and accurate representation of that which is
depicted.
Audio or Videotape: Show that there has been no deletions or additions or edits, that the
machine operate knew how to operate the machine and that the machine was in working order,
how the tape (or data) was stored before trial, that the statements were made voluntarily and
identify the people speaking.
Physical Evidence: Show a chain of custody.
Electronic Data: Show that the normal operations of the computer have not changed the data.
Best Evidence Rule:
Is the contested evidence a writing, recording, or photograph? Rule 1001.
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

Yes  Is the evidence offered to prove the content of the writing, recording, or
photograph? Rule 1002.
o Yes  Party must follow one of these paths:
 Produce original, defined by Rule 1001(d).
 Prove one of four exceptions defined by Rule 1004, and offer other
evidence.
 Produce duplicate, defined by Rule 1001(e), unless a question is raised
about authenticity of the original or a duplicate would be unfair. Rule
1003.
 Prove a public record according to Rule 1005.
 Prove contents by written statement, testimony, or deposition of opponent.
Rule 1007.
 Provide a summary if contents are voluminous, while making originals or
duplicates available for examination or copying. Rule 1006.
o No  Best evidence rule does not apply.
No  Best evidence rule does not apply.
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PRESUMPTION
(Rules 301 and 302)
Presumptions and judicial notice are two special situations within the Rules where, in a civil
case, the judge will instruct the jury that certain facts are proven and must be accepted.
PRESUMPTIONS (Pg. 904-915)
Four types of presumptions:
 Permissive Inferences. Judge simply instructs the jury that it may infer one fact from
another. The jury may disregard this suggestion; a permissive inference merely gives the
jury an option.
 Presumptions That Shift the Burden of Production. Shifts the burden of producing
evidence, but not the burden of proof. If a party successfully invokes one of these
presumptions, the opponent must respond by producing some contrary evidence. But
once the opponent responds, the original party retains the burden of proof on the issue.
o When a party responds to a burden-of-production-shifting presumption by
offering evidence that disputes the presumed fact, the new evidence destroys the
presumption and eliminates it from the case (bursting-bubble presumption).
 Presumptions That Shift the Burden of Proof. Shifts the burden of proof to an
opposing part. These presumptions: (1) arise once a party introduces sufficient evidence
of facts needed to invoke the presumption; (2) require the opponent to respond to the
presumed fact by producing evidence in response; and (3) require the opposing party to
carry the burden of proof in overcoming the presumed fact.
 Conclusive Presumptions. Conclusive presumptions, sometimes called irrebuttable
presumptions, require the factfinder to draw a particular inference.
Rule 302 declares that, when state law governs a civil claim or defense, state law also determines
the effect of any presumption on that issue.
RULE 302. Applying State Law to Presumptions in Civil Cases
In a civil case, state law governs the effect of a presumption regarding a claim or defense for
which state law supplies the rule of decision.
Rule 301 establishes a default principle governing presumptions in civil cases that are not
governed by state law or other federal laws.
RULE 301. Presumptions in Civil Cases Generally
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a
presumption is directed has the burden of producing evidence to rebut the presumption. But this
rule does not shift the burden of persuasion, which remains on the party who had it originally.
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Once the opposing party offers some evidence that is plausible enough that a reasonable jury
could believe it, the presumption disappears from the case. The factfinder then weights the
evidence supplied by both parties without any regard for the presumption.
 This means that, in a jury trial, the jury never even hears about a bursting-bubble
presumption. This type of presumption is merely a procedural device that structures the
order of proof and determines the availability of judgments as a matter of law. When one
party introduces evidence that creates a bursting-bubble presumption, the opponent must
offer evidence to counter that presumption. If the opponent does not offer evidence that a
reasonable jury could find sufficient to defeat the presumption, then the party creating the
presumption is entitled to judgment as a matter of law. If the opponent does introduce the
necessary evidence, then the jury decides the case without reference to any presumption.
A presumption exists.
 If the other party offers evidence against the presumption sufficient to overcome the
presumption, then the presumption has no weight and ceases to exist.
 If the other party fails to offer evidence against the presumption sufficient to overcome
the presumption, then the presumption exists and the jury may consider it.
Presumed facts: If the opposing party attacks the presumed facts in a rebuttable presumption,
then the presumption ceases to exist.
Basic facts: If the opposing party attacks the basic facts in a rebuttable presumption, the judge
will instruct the jury that it must first find the basic facts, and if it does, it may then use the
presumption.
Federal Rules of Evidence DO NOT affect presumptions in criminal cases.
 Presumption of innocence is a constitutional right not covered in the Rules.
 A presumption cannot shift the burden of proof to a criminal defendant.
 Two types of other presumptions in criminal cases (Ulster County Court v. Allen (S. Ct.
1979):
o Mandatory presumption. Affects not only the strength of the “no reasonable
doubt” burden but also the placement of that burden; it tells the trier of fact that it
must find the elemental fact upon proof of the basic fact, unless the defendant has
come forward with some evidence to rebut the presumed connection between the
two facts.
 If the presumption is a rebuttable mandatory presumption it may be
allowed, but if it is a conclusive mandatory presumption it violates the
presumption of innocence and will not be allowed.
 The conclusive mandatory presumption “removes the presumed element
from the case once the state has proved the predicate facts giving rise to
the presumption.”
 A rebuttable mandatory presumption does not remove the presented
element from the case but does require the trier of fact to find the
presumed element unless the defendant persuades the trier of fact that such
a finding is unwarranted, however it cannot shift the burden of proof on
the element to the defendant.
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
A rebuttable mandatory presumption gives the defendant the
burden of persuasion (or production) but not the burden of proof. It
does not even require a preponderance of the evidence to overcome
the presumption.
 A rebuttable mandatory presumption may still fail if the jury
instructions would allow a reasonable jury to believe that the
defendant had a burden of giving evidence or if it will not actually
allow the trier of fact to reject the presumption.
o Permissive presumption. Allows, but does not require, the trier of fact to infer
the elemental fact from proof by the prosecutor of the basic one and which places
no burden of any kind on the defendant.
 Leaves the trier of fact free to credit or reject the inference and does not
shift the burden of proof.
 Affects the “beyond a reasonable doubt” standard only if, under the facts
of the case, there is no rational way the trier could make the connection
permitted by the inference.
 If a presumption is permissive, the trial court may allow it to go to the trier
of fact if the basic facts are proven under a preponderance standard.
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JUDICIAL NOTICE
(Rule 201)
Judicial notice is the act of the court deciding a fact in the case.
Judicial notice is never based just on the knowledge of the judge. Beware of judges who wish to
take notice of facts because they are aware of the fact.
Once a fact has been judicially noticed, no more evidence should be received on that point
(except in criminal cases).
JUDICIAL NOTICE (Pg. 731-742)
Adjudicative Fact: One that helps prove the elements of a specific case.
Legislative Fact: Informs a court’s ruling on a legal issue. Legislative facts are facts that do not
vary based on the activities or characteristics of particular litigants and/or which do not change
from case to case; they are universal.
Rule 201 applies only to adjudicative facts. Neither Rule 201 nor any other rule restricts a
judge’s discretion to take judicial notice of legislative facts. Thus, under the Rules, judges may
always take judicial notice of legislative facts and they may do so without following any
prescribed procedures.
RULE 201. Judicial Notice of Adjudicative Facts
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that
is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the
necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
69
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety
of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice
before notifying a party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact
as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept
the noticed fact as conclusive.
Subject to Reasonable Dispute: Courts have held that a wide range of facts are not subject to
reasonable dispute. Whether a fact is subject to reasonable dispute, however, may change
depending on the era and circumstances.
Indisputability alone does not render a fact suitable for judicial notice The fact must also either
(1) be “generally known within the trial court’s territorial jurisdiction: or (2) “accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.”
Generally Known: A fact must be generally known to the public. Facts may just be generally
known within the court’s jurisdiction, even though they may not be well known in other parts of
the country.
Capable of Determination: Allows parties to prove facts that are well-known only within a
particular occupation or other subgroup.
Judicial and Agency Decisions: Court and agency decisions easily fit within Rule 201. Courts
frequently take judicial notice of judgments rendered by other courts or by administrative
agencies.
 But judicial notice of a judgment extends only to the terms of the judgment, not the facts
underlying the decision.
Supporting Sources Do Not Have to Be Admissible: When a party offers a source to show that it
is easily verifiable under Rule 201(b)(2), the source does not have to be admissible. Parties,
therefore, may rely upon books, public records, business records, and other types of hearsay
without showing that the source fits within one of the hearsay exceptions.
 Though Rosen states that some courts find that admissibility is required under Rule 201.
Criminal Cases: Care should be taken in asking a court to take judicial notice of any essential
element in a criminal case under Rule 201 as this may be a constitutional violation as it removes
the beyond a reasonable doubt finding from the trier of fact.
Stipulations: If both parties agree on a fact, they can make a stipulation that the fact is true. A
stipulation only means that the two parties, for the purposes of the litigation, agree to the fact.
The jury must accept stipulated facts as true in a civil case, but is not required to do so in a
criminal case.
Examples:
 Geographic facts.
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










Published compilations (telephone book).
Statistical facts (survey results or insurance tables).
Public records.
Authoritative treatises.
Social security checks are sent by mail.
Federal officers do not patrol the streets.
A certain time of day is the daytime in the location.
Contraband is smuggled in prisons.
Southwestern Bell Telephone engaged in interstate commerce.
New York has no manufacturers of firearms.
Dietary laws are important to Orthodox Judaism.
71
REFRESHING RECOLLECTION
(Rules 612 and 803(5))
REFRESHING A WITNESS’S MEMORY (Pg. 195-206)
To use a writing to refresh a witness’s recollection, the attorney should follow five steps:
 Establish that the witness does not recall the answer to a question.
 Describe the writing she wishes to use to refresh the witness’s recollection and ask if that
writing would refresh the witness’s recollection.
 Show the writing to the witness. The witness will examine the writing and put it aside
(usually giving it back to the attorney).
 Ask whether the writing has refreshed the witness’s recollection or helped her to
remember. The witness should answer yes, and then she can answer the original question
from her refreshed recollection.
 Either before or during this process, the attorney must be sure to give the opposing
counsel a copy of the writing.
o According to Rosen, if the witness reviewed the thing, but it did not refresh his
recollection, then Rule 612 does not require disclosure.
Testifying from Original Memory: Rule assumes that a witness will jog her memory by looking
at a writing, and then testify from the “refreshed” memory rather than from what the writing
itself said. This is why the witness puts the writing aside or hands it back to the lawyer before
continuing to testify.
 Opposing counsel can ask to “voir dire” (examine) the witness on her recollection to test
if the witness can independently recall the events recorded in the writing and is not just
repeating what the writing stated.
 A party should not be allowed to circumvent hearsay rules by pretending to refresh the
recollection of a witness and then have the witness recite information contained in the
document.
What Type of Writing?: Rule does not limit the type of writing a witness may use to refresh
recollection. The writing does not have to a “writing” at all. Judges have allowed attorneys to
refresh the memory of witnesses with audiotapes, photographs, other media, and objects.
 Two practical limits on an attorney’s creativity when choosing ways to refresh a
witness’s recollection: (1) the jury’s perception, and (2) opposing counsel’s Rule 612
rights.
 The items used to refresh memory need not have been created by the witness, and need
not have been made at the time of the event.
 No requirement that the item used to refresh memory be correct or accurate, as the trier of
fact will not see it.
 Illegally obtained evidence may be used to refresh memory.
Effect of Introducing the Writing: If the adverse party does choose to admit the writing into
evidence, courts have held that—unless the writing is admissible on other grounds—the jury may
use the writing only to assess the witness’s credibility. The jury cannot use the document to
establish substantive matters referred to in the document.
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

When a party introduces a document under Rule 612 and the document is not
independently admissible under other rules, the judge will give the jury a limiting
instruction explaining how to use the document.
If the document used to refresh recollection is otherwise admissible, then an instruction
like this is not necessary; the jury may use the document for any permitted purpose.
According to Rosen, disclosure of “work product” materials to a witness to prepare them for
trial constitutes a waiver of the privilege against disclosure.
The core language of Rule 612 gives adverse parties the right to:
 Inspect any writing the witness uses to refresh recollection;
 Cross-examine the witness on the writing; and
 Introduce the relevant portions of the writing into evidence.
o Adverse party may introduce a writing used for refreshment into evidence even if
the writing would not otherwise be admissible.
o Pursuant to Rule 105, a limiting instruction should be requested instructing the
jury that they may only consider the statement in determining the credibility of
the witness.
RULE 612. Writing Used to Refresh a Witness’s Memory
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to
refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those
options [judges rarely do so].
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides
otherwise in a criminal case, an adverse party is entitled to have the writing produced at the
hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any
portion that relates to the witness’s testimony. If the producing party claims that the writing
includes unrelated matter, the court must examine the writing in camera, delete any unrelated
portion, and order that the rest be delivered to the adverse party. Any portion deleted over
objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered
as ordered, the court may issue any appropriate order. But if the prosecution does not comply in
a criminal case, the court must strike the witness’s testimony or — if justice so requires —
declare a mistrial.
HEARSAY EXCEPTION—RECORDED RECOLLECTION (Pg. 536-546)
If a witness’s memory cannot be refreshed, then Rule 803(5), past recollection recorded, should
be used.
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Rule 803(5) requires the declarant actually be available because the rule applies only when the
declarant testifies as a witness.
Rule 803(5) has six requirements for admissibility:
 The out-of-court statement appear in a “record.”
o Most cases involve written records, but audiotapes and other media have been
allowed.
 The witness testifying in court must either be the declarant who made the record or a
person who saw the record and agreed that it was true.
o Witness need not memorialize a recollection himself; as long as the witness
approved the content of the recording while his recollection was still fresh, and
then affirms at trial that he believe the recording was accurate at the time.
 The declarant/witness must testify that she once knew about the information contained in
the record, and that she made or adopted the record when she had that knowledge.
 The witness must have made or adopted the record at a time when her knowledge was
“fresh.”
o Does not require contemporaneous notetaking. Courts have allowed introduction
of recorded recollections created as long as fifteen months after an event, as long
as circumstances indicate that the witness genuinely remembered the information
at the time it was recorded.
 The witness must testify that at the time she made or adopted the record, she knew that it
accurately reflected the knowledge that she had.
 The witness must no longer recall the information contained in the record “well enough
to testify fully and accurately.”
o Witness need not claim complete memory loss; examining attorney must show
that the witness forgot details important to the testimony.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough
to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only
if offered by an adverse party.
Refreshing Memory Compared To Recorded Recollection
Rule 612: Refreshing Memory
Rule 803(5): Recorded Recollection
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Need Arises When: Witness cannot recall
details of an event or other matter of which
she once had personal knowledge.
What Witness Does: Looks at evidence
(usually a writing) to jog memory, then
testifies orally without referring to evidence.
What Type of Evidence: Any writing or other
evidence that will help witness remember; the
witness need not have created or adopted the
material.
Who May Introduce Evidence Used to
Refresh: Only adverse part (i.e., party that did
not call witness).
Relationship to Hearsay: Witness testifies
directly from memory after refreshment, so
there is no hearsay issue. If adverse party
introduces writing into evidence, it is
admissible only on the issue of credibility.
For the jury to consider the writing for the
truth of the matter asserted, it must fall within
a hearsay exception.
Need Arises When: Witness cannot recall
details of an event or other matter of which
she once had personal knowledge.
What Witness Does: Reads into record
information from a document or other record.
What Type of Document or Other Record:
One that the witness “made or adopted” when
the matter was “fresh” in the witness’s
memory. Record must correctly reflect
witness’s personal knowledge at time it was
recorded.
Who May Introduce Record Recollection:
Only adverse party (i.e., party that did not call
witness).
Relationship to Hearsay: Statements
contained in the record area admitted as an
exception to the hearsay rule. The jury may
consider the content of the document or other
record, as read into the trial record by the
witness, for the truth of the matters asserted.
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CHARACTER
(Rules 404(a), 405, 608, 412, and 610)
CHARACTER EVIDENCE AND THE RULES (Pg. 292-302)
Character traits are internal; they reside within a person.
Reputation is external; it reflects what other people think about an individual.
Actions lie in between character and reputation. Since we can’t see character, we deduce it from
an individual’s actions. At the same time, we use actions to construct an individual’s reputation.
Four Categories of Character Evidence:
 Proof of a Witness’s Propensity to Lie or Tell the Truth.
o Under some circumstances, Rules 609 and 609 allow parties to introduce evidence
related to a witness’s character for untruthfulness.
o Evidence depends on the notion of propensity. Parties introducing evidence of a
witness’ untruthful character urge the jury to conclude that the witness’s
propensity to lie produced lies on this occasion. Similarly, a litigant who offers
evidence of a witness’s truthful character maintains that the witness’s propensity
to tell the truth yielded truthful testimony on this occasion.
 Proof of Conduct by Propensity.
o Parties often argue that, just as witnesses testify consistently with their character
for truthfulness or untruthfulness, people act in other ways that are consistent with
other character traits.
o Rule 404(a) bars most attempts to prove conduct by propensity.
 Proof of Character or Reputation as Elements.
o A party may offer evidence of character or reputation for reasons that do not
depend on an inference of propensity.
o Legal claims or defenses that require proof of character or reputation to establish
an element are rare are rare, but a few exist (e.g., defamation). When parties offer
evidence of character or reputation to establish an element in this manner, Rule
405 allows that evidence.
 Proof of Other Acts for Non-Propensity Purposes.
o Evidence of a person’s actions can establish facts other than character and can
support inferences other than one based on propensity.
o When parties offer evidence of an action for a purpose other than to prove
character and a propensity to act in a particular way, Rule 404(b) often allows that
evidence.
EVIDENCE TO PROVE CHARACTER AS AN ELEMENT (Pg. 303-312)
Rule 404(a) only prohibits character evidence when it is used to suggest that a person acted
consistently with their character on a particular occasion. This prohibition does not affect the
admissibility of evidence proving character as an element.
Rule 405 outlines the permissible ways to prove character as an element of a crime, claim, or
defense.
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

Subsection (a): Allows proof of character through opinion or reputation evidence.
o Allows, on cross-examination, the opposing party to ask a character witness about
specific acts. Used to undermine the testimony of the character witness by crossexamining the witness about incidents negating that character.
Subsection (b): When character is an element of a crime, civil claim, or defense, the
parties are not limited to opinion or reputation testimony. The parties may introduce
specific evidence demonstrating the disputed character.
RULE 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in the
form of an opinion. On cross-examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved by
relevant specific instances of the person’s conduct.
What is “Character”?: Includes almost any personality trait, including honesty, mendacity,
cautiousness, recklessness, aggressiveness, and passivity or peacefulness.
 Various traits of character that have been found relevant:
o Truthfulness.
o Violent or calm nature.
o Following the law.
o A witness’s memory or mental capacities are not character traits.
Foundation for Opinion or Reputation Testimony (Rule 405(a)): The examining attorney must
first establish that the witness knows the person whose character is at issue or knows that
person’s reputation. After establishing that knowledge, the witness will offer a brief opinion or
reputation report about the person’s character.
Good Faith Belief for Cross-Examination on Specifics (Rule 405(a)): If a party uses opinion or
reputation testimony to show a character trait, the opponent may cross examine the witness about
specific incidents related to that character trait. The cross-examiner must have a good faith
belief that the incidents actually occurred.
Proof of Specific Incidents (Rule 405(b)): Rule allows parties proving character as an element of
their case to present evidence of specific instances of conduct. This type of character evidence
may be introduced through direct examination (unlike 405(a)) which only allows it on cross)
once it has been brought up on direct.
Character is an “Element” In: (1) defamation cases; (2) child custody cases; (3) criminal cases
when the defendant claims entrapment; and (4) negligent entrustment.
 Rosen states that specific acts are allowed in these type of claims:
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o Being a felon in possession of a firearm. The prior specific act (felony conviction)
is an element of the new charge.
o Certain crimes require proof that the defendant is a habitual criminal.
o Certain crimes require proof of the status of the victim (an example is a statute
requiring proof of the victim’s chastity).
o In a case for negligently entrusting a vehicle to another the competency of that
other person to drive can be an element.
o In a case for the negligent hiring or supervision of an employee the employee’s
prior conduct or the employer’s prior failures may be elements.
o In an entrapment defense, a defendant claims he was not predisposed to commit
the crime.
o In a self-defense claim, either the victim’s reputation for violence as known by the
defendant, or the victim’s other acts of violence as known by the defendant might
have given the defendant cause to act. The victim’s violent character may also be
used to show that it was more likely that he acted in a way that required the
defendant to defend himself.
USING CHARACTER EVIDENCE TO PROVE PROPENSITY (Pg. 313-318)
Rule 404(a)(1) broadly prohibits the use of character evidence when offered to show
propensity.
 Parties may not use character evidence to prove that, because a person had a propensity to
act in a certain way, the person was more likely to have acted in that way on a particular
occasion.
 Bars both bad and good character if that evidence is offered to prove that a person acted
consistently with their character on a particular occasion.
 Bars the use of character evidence to prove the propensity of any person to act in
particular way.
Key element to applying Rule 404(a)(1) is identifying the purpose for which a party is offering
evidence.
RULE 404. Character Evidence; Crimes of Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible
to prove that on a particular occasion the person acted in accordance with the character or
trait.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under
Rules 607, 608, and 609.
CHARACTER EVIDENCE TO SHOW PROPENSITY IN CRIMINAL PROSECUTIONS
(Pg. 319-328)
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Rule 404(a)(2) sets out exceptions for criminal prosecutions to Rule 404(a)(1)’s general
prohibition of propensity evidence.
The criminal defendant has considerable freedom to introduce character evidence about
himself or the alleged victim. [Mercy Rule.]
 Only limits are (1) the evidence must related to a “pertinent” character trait and (2) the
evidence must comply with Rule 412, the rape shield law.
 Many courts say that Rule 404(a)(2)’s “pertinent” standard is the same as Rule 401’s
definition of relevance. Though some courts apply Rule 404(a)(2) more rigorously than
Rule 401. Judge has broad discretion to determine whether a trait is pertinent.
The prosecutor may introduce character evidence under these exceptions only in response to an
action taken by the defendant.
 If the defendant offers character evidence about himself, the prosecutor may rebut that
evidence with proof that the defendant lacks that trait or holds an opposite one.
o Prosecutor can only offer evidence on a trait matching it—cannot address other
traits not brought up by defendant.
 If the defendant introduces character evidence about the alleged victim, the prosecutor
may rebut that evidence by showing that the victim lacked that trait or held the opposite
one. The prosecutor may also introduce evidence that the defendant held the trait that the
defendant attributes to the victim.
 In a homicide case, the prosecutor may offer evidence that the deceased victim was a
peaceful person in response to any evidence that the deceased was the first aggressor. The
prosecutor does not have to wait for the accused to introduce character evidence; the
government may respond to any evidence that the deceased attacked first.
RULE 404. Character Evidence; Crimes of Other Acts
(a) Character Evidence.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an
alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor
may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s
trait of peacefulness to rebut evidence that the victim was the first aggressor.
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Character Evidence Admissible to Prove Propensity in Criminal Trials—Rule 404(a)(2)
Type of Character Evidence When May the Defendant
When May the Prosecution
Offer this Evidence?
Offer This Evidence?
Pertinent Trait of the
Any time (a)(2)(A)
To rebut character evidence
Defendant
of the same trait offered by
the defendant (a)(2)(A), OR
to match character evidence
that the defendant offered
about the alleged victim
(a)(2)(B)(ii)
Trait of Peacefulness of the
Not applicable: Defendant
In a homicide case: To rebut
Alleged Victim
would not introduce this
any evidence that the alleged
evidence (a)(2)(C)
victim was the first aggressor
(a)(2)(C)
In other cases: To rebut
character evidence that the
victim was not peaceful
(a)(2)(B)(i)
Other Pertinent Trait of
Any time, unless barred by
Only to rebut evidence of the
Alleged Victim
Rule 412 (the rape shield law) same trait offered by the
(a)(2)(B)
defendant; evidence must
comply with Rule 412 (the
rape shield law) (a)(2)(B)(i)
METHOD OF PROVING PROPENSITY IN CRIMINAL CASES (Pg. 329-341)
Rule 405 allows parties to present both opinion/reputation testimony and extrinsic evidence of
specific instances of conduct related to character. The opposing party may also ask about specific
instances of conduct during cross-examination.
 Rule 405 significantly reduces the appeal of invoking the Rule 404(a)(2) exceptions to
offer propensity evidence in criminal cases. Defendants providing evidence of their good
character risk devastating cross-examinations in which the prosecution asks the character
witness about specific instances of misconduct.
 If a defendant does not want to open the door to cross-examination on particular instances
of misconduct, he can forego presenting character witnesses. Having opened the door on
character, the defendant cannot complain about the type of evidence that enters.
To be a competent witness, the proponent must show a factual basis for either the personal
opinion or for the community’s belief in the other person’s reputation.
 Opinion: Witness must show a sufficient relationship with the other person to accept they
have a basis for their opinion that deserves to be credited.
 Reputation: Witness must first be able to define the community about which he will
speak. Once the community is defined, the witness must show both the relationship to the
community of the person about whose reputation the witness will testify and the
witness’s own relationship to that community. The witness must show a sufficient
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relationship between the community and the other person to accept that the community
possesses a basis for its belief in the reputation of the other person that deserves to be
credited.
RULE 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in the
form of an opinion. On cross-examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved by
relevant specific instances of the person’s conduct.
Laying a Foundation: An attorney examining a character witness must lay a foundation showing
that the witness has sufficient knowledge to offer an opinion about character or reputation.
Cross-Examination on Specific Acts: Parties in criminal cases run a serious risk if they call a
character witness to testify about a defendant’s or victim’s good character. On crossexamination, the opposing party may decimate that witness by asking questions related to
specific bad acts.
Relevant Acts: Although Rule 405 allows attorneys to cross-examine character witnesses about
specific acts, the examiners may ask only about acts that are relevant to the character trait
described by the witness.
Good Faith Belief: A cross-examiner cannot ask a character witness about speculative or
imaginary acts; the attorney must have a good faith belief that the incidents occurred.
Extrinsic Evidence: A party who cross-examines a character witness about specific conduct
under Rule 405(a) must accept the witness’s response. If the witness denies knowledge of the
conduct, the cross-examiner cannot introduce evidence that the conduct really occurred. Nor can
the opposing party offer evidence disputing whether the conduct occurred. Either type of
evidence would be proof of a “specific instance[] of the person’s conduct,” which Rule 405
allows only when character is an element of the case.
 Same reasoning usually bars a party from attempting to prove that an incident raised
during this type of cross-examination did not occur.
 Under unusual circumstances, when a mistaken inference of bad behavior would be
highly prejudicial, the judge might allow the affected party to introduce extrinsic
evidence disproving the incident. This is rare.
Rebuttal Witnesses: In addition to cross-examining a character witness, the parties in a criminal
case may present rebuttal character witnesses. These character witnesses testify that the
defendant or victim has a character trait contrary to one presented by another character witness.
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REPUTATION OR OPINION EVIDENCE OF UNTRUTHFUL CHARACTER (Pg. 268276)
Rule 608 allows parties to present a separate witness, a “character witness,” who testifies that the
original witness (typically a fact witness) has a trustworthy or untrustworthy character. Three
limitations:
 Evidence must be in the form of reputation or opinion only.
o Parties may not ask about specific instances on direct.
o Parties are allowed to cross-examine fact witnesses about incidents that might
reveal untruthfulness, and they may present character witnesses who offer opinion
or reputation evidence about the fact witness’s truthfulness.
 Evidence must relate to the witness’s character for truthfulness or untruthfulness.
 Testimony about a witness’s character for truthfulness can only be elicited after his
character has been attacked.
RULE 608. A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character. But evidence of truthful character
is admissible only after the witness’s character for truthfulness has been attacked.
RULE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness
(21) Reputation Concerning Character. A reputation among a person’s associates or in
the community concerning the person’s character.
Opinion Evidence: When a character witness offers an opinion about a fact witness’s character
for truthfulness, the attorney will first lay a foundation by showing that the character witness
knows the fact witness well enough to have formed an opinion about the fact witness’s truthful
or untruthful nature. The attorney will then ask the character witness to voice her opinion about
the fact witness’s character.
Reputation Evidence: The attorney first establishes that the character witness has a basis for
knowing the fact witness’s reputation. The attorney will then ask the character witness to state
that reputation.
Limited Purpose: Evidence of untruthful character is admissible only to assess the credibility of
the witness’s courtroom testimony. The evidence is not admissible for other purposes, such as
establishing guilt or innocence.
When Has Character Been Attacked?: Rule 608(a) allows parties to bolster a fact witness’s
credibility with evidence of a truthful character, but only after the witness’s character for
truthfulness “has been attacked.” If an opponent presents a character witness who testifies about
the fact witness’s lack of truthful character, then character clearly has been attacked. Likewise, if
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the opponent conducts a cross-examination of the fact witness and asks questions about specific
acts of dishonesty under Rule 608(b), or if the opponent introduces evidence of a conviction
under Rule 609, the opponent has attacked the fact witness’s character for truthfulness.
Applicable Only to Witnesses: Rule 608(a) only admits evidence related to a witness’s character.
If an individual does not testify in court, parties cannot rely upon this rule to attack that person’s
credibility.
CROSS-EXAMINING THE CHARACTER WITNESS (Pg. 277-282)
Rule 608(b)(2) allows parties to ask character witnesses on cross-examination about specific
incidents of a fact witness’s behavior. Although the party who calls a character witness may not
ask the witness questions about specific incidents on direct examination, an opposing party may
ask about specifics on cross-examination.
 Cross-examiner cannot ask these questions on cross-examination unless she has a good
faith basis for believing that the specific acts occurred.
 The cross-examining cannot offer extrinsic evidence of the specific act; she is stuck
with the character witness’s answer on cross.
Theory behind this is that the cross-examiner is entitled to test the basis of the character
witness’s opinion or recital of reputation. A character witness who testifies about a fact witness’s
character should be aware of relevant incidents.
 By presenting a character witness, a party invites cross-examination on specifics.
RULE 608. A Witness’s Character for Truthfulness or Untruthfulness
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic
evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court may, on cross-examination, allow
them to be inquired into if they are probative of the character for truthfulness or untruthfulness
of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination
for testimony that relates only to the witness’s character for truthfulness.
RAPE SHIELD LAW (Pg. 378-396)
Rule 412 restricts the kind of evidence that can be introduced in sexual assault cases—prohibits
almost all evidence of an alleged victim’s prior sexual encounters or sexual reputation.
 Section (a): declares a general prohibition against using evidence of an alleged victim’s
past sexual behavior or sexual reputation.
 Section (b): recognizes several exceptions to that general rule.
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
Section (c): establishes procedural guidelines to protect privacy while judges determine
the admissibility of evidence under the exceptions.
RULE 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding
involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to
prove that someone other than the defendant was the source of semen, injury, or
other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the
person accused of the sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s
sexual behavior or sexual predisposition if its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any party. The court may admit
evidence of a victim’s reputation only if the victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose
for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a
different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or
representative.
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(2) Hearing. Before admitting evidence under this rule, the court must conduct an in
camera hearing and give the victim and parties a right to attend and be heard. Unless the
court orders otherwise, the motion, related materials, and the record of the hearing must
be and remain sealed.
(d) Definition of “Victim.” In this rule, “victim” includes an alleged victim.
RELIGIOUS BELIEFS AND IMPEACHMENT (Pg. 283-286)
Rule 610 prohibits parties from using a witness’s religious beliefs to attack the witness’s
credibility. The rule also bars parties from using religious beliefs to enhance credibility.
 If evidence of religious beliefs is relevant to other matters, however, parties may offer the
evidence for those purposes.
RULE 610. Religious Beliefs or Opinions
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the
witness’s credibility.
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SIMILAR ACTS
(Rules 404(b), 413, 414, 415, and 406)
CRIMES, WRONGS, OR OTHER ACTS (Pg. 342-367)
Rule 404(b) evidence is evidence extrinsic to the charged conduct that is admitted at trial. Rule
404(b) does not apply to intrinsic evidence.
 Intrinsic evidence are the facts that prove the allegations in the complaint or indictment.
 Extrinsic evidence are any other facts.
Rule 404(b) recognizes that actions that reveal a person’s character may also prove a variety of
facts material to the lawsuit. As long as the actions are used to prove one of those facts, rather
than to show a propensity to act in a particular manner, Rule 404 allows their admission.
 Rule 404(b) applies to both bad and good acts.
 Rule 404(b) applies in both civil and criminal cases.
 Rule 404(b) “admits evidence of other crimes or acts relevant to any issue in the trial,
unless it tends to prove only criminal disposition.
To be admitted, the proponent must show that the Rule 404(b) evidence is:
 Relevant to a material issue raised at trial.
 Sufficient evidence to support a finding that the opposing party committed the act. (Rule
104(b)—the judge must determine there is sufficient evidence from which the jury could
find the other act occurred by a preponderance of the evidence.
o Conduct for which the defendant has already been acquitted is still permissible
under Rule 404(b) as the standard of proof for admission is only by
preponderance of the evidence.
 Most circuits require the evidence pass a Rule 403 test. Some require that the probative
value of the evidence is not substantially outweighed by its potential prejudice (drops
“fairness”).
o In assessing the prejudice, courts consider: (1) the strength of the proponent’s
case; (2) how prominent the Rule 404(b) evidence played in the proponent’s case;
(3) how inflammatory the Rule 404(b) evidence is; and (4) whether the Rule
404(b) evidence is more severe than the evidence in the case-in-chief.
 Similar in kind and close in time to the charged crimes or the civil cause of action.
o Similar does not mean identical
o Close in time has been given a wide timespan (seven to thirteen years).
The proponent of the evidence need not wait until the other side has presented evidence on the
issue to respond with Rule 404(b) evidence.
A limiting instruction should be given by the court before the Rule 404(b) evidence is presented
to the trier of fact.
The court need not first hear the evidence outside the presence of the trier of fact to make a
preliminary determination of admissibility under Rule 104(a) before it allows the trier of fact to
hear the evidence.
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RULE 404. Character Evidence; Crimes of Other Acts
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in
a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack
of pretrial notice.
Motive: A previous crime or other bad act is admissible because it motivated the charged crime.
Plan:
Identity: “Signature elements” of a crime may allow the prosecutor to prove identity by
introducing evidence of the defendant’s other crimes or bad acts.
 (1) Identity must be at issue and (2) must be strong similarities between the charged and
other crimes.
Opportunity: Commission of a crime sometimes requires a particular opportunity, such as access
to a protected place or to special tools. To prove that the defendant had the opportunity to
commit a crime like this, the prosecutor may offer evidence that the defendant enjoyed access to
the protected place or special tools on another occasion.
Knowledge: Similar to opportunity. Can cite “knowledge” as a purpose for introducing evidence
of other crimes or bad acts when knowledge of a particular fact is an element of the crime.
Evidence of another crime sometimes demonstrates that the defendant possessed that knowledge.
Intent: Evidence of other crimes, wrongs, or acts may also be admissible to prove that a
defendant possessed the intent necessary to commit a crime.
Modus Operandi: A particular way or method of doing something, especially one that is
characteristic or well-established.
 Use of Rule 404(b) evidence by a defendant to suggest that another committed the crime
has been approved on reverse modus operandi logic.
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Other Non-Propensity Purpose: Preparation overlaps with plan, knowledge, and opportunity,
while absence of mistake and lack of accident both overlap with intent, motive, and knowledge.
Subsequent Crimes, Wrongs, and Acts: Rule imposes no time constraints. Other crimes, wrongs,
and acts may occur after charged one.
HABIT (Pg. 368-377)
Habit refers to specific, repeated responses to a particular situation or stimulus. In other words,
means that an individual who is placed in a particular situation will respond over and over again
with the same behavior.
To distinguish habit from propensity, focus on three factors:
 The specificity of the conduct.
 The distinctiveness of the situation producing the conduct.
 The regularity of the conduct.
Habit is not just admissible, but possibly sufficient to establish that a witness performed the
disputed action in accordance with long-standing habit.
 Habit is always circumstantial evidence.
Habit is shown by:
 Degree to which the conduct is reflexive or semi-automatic as opposed to volitional.
 Specificity or particularity of the conduct.
 Regularity or large number of the examples of the conduct.
RULE 406. Habit; Routine Practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that
on a particular occasion the person or organization acted in accordance with the habit or routine
practice. The court may admit this evidence regardless of whether it is corroborated or whether
there was an eyewitness.
PROPENSITY IN SEXUAL-ASSAULT AND CHILD-MOLESTATION CASES (Pg. 397405)
The prior offense of sexual assault or child molestation need not produce a formal charge or
conviction; any accusation of prior conduct meeting the elements of these crimes satisfies Rules
413-415. Rule 403, however, still applies to this evidence. The court will balance the probative
value of the evidence against its prejudicial effect.
 Rule 403 is difficult to apply to evidence admitted under Rules 413-415.
 In applying Rule 403 to evidence admitted under Rules 413-415, courts look to (1) the
amount of time that has passed since the prior incident; (2) the reliability of the evidence
relating to that prior incident; (3) the similarity between the past incident and the charged
crime; and (4) whether the government could prove its point using less prejudicial
evidence.
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In criminal prosecutors for sexual assault, Rule 413 allows prosecutors to introduce evidence of
other sexual assaults committed by the defendant and to use that evidence for any purpose,
including to suggest that the defendant has a propensity to commit sexual assaults.
RULE 413. Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the
court may admit evidence that the defendant committed any other sexual assault. The evidence
may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor
must disclose it to the defendant, including witnesses’ statements or a summary of the expected
testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court
allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.
(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime
under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body — or an object —
and another person’s genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of
another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or
physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).
Rule 414 allows a prosecutor to introduce evidence of other child molestations and argue that the
defendant has a propensity to molest children.
RULE 414. Similar Crimes in Child-Molestation Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the
court may admit evidence that the defendant committed any other child molestation. The
evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor
must disclose it to the defendant, including witnesses’ statements or a summary of the expected
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testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court
allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.
(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:
(1) “child” means a person below the age of 14; and
(2) “child molestation” means a crime under federal law or under state law (as “state” is
defined in 18 U.S.C. § 513) involving:
(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a
child;
(B) any conduct prohibited by 18 U.S.C. chapter 110;
(C) contact between any part of the defendant’s body — or an object — and a
child’s genitals or anus;
(D) contact between the defendant’s genitals or anus and any part of a child’s
body;
(E) deriving sexual pleasure or gratification from inflicting death, bodily injury,
or physical pain on a child; or
(F) an attempt or conspiracy to engage in conduct described in subparagraphs
(A)–(E).
Rule 415 allows the same evidence and propensity reasoning in Rules 413 and 414 in civil cases
involving sexual assault or child molestation.
RULE 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual
assault or child molestation, the court may admit evidence that the party committed any other
sexual assault or child molestation. The evidence may be considered as provided in Rules 413
and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose
it to the party against whom it will be offered, including witnesses’ statements or a summary of
the expected testimony. The party must do so at least 15 days before trial or at a later time that
the court allows for good cause.
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(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.
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RULES BASED ON SOCIAL POLICY
(Rules 407, 408, 409, 410, and 411)
To encourage behavior that society finds beneficial, we have created rules that do not allow that
type of conduct to be used in evidence against another.
SUBSEQUENT REMEDIAL MEASURES (Pg. 88-105)
Rule 407 limits the admissibility of subsequent remedial measures after an injury or harm in civil
cases only.
 Encourage the correction of potentially dangerous conditions.
Rule 407 does not bar proof of remedial action that occurred before the harm that is the subject
of the lawsuit.
Actions which are inadmissible under Rule 407 include: (1) a change in the policy of a business;
(2) installation of safety devices; (3) changes in warnings; (4) changes in a product’s design; and
(5) altering marketing materials.
Changes required by law or regulations are not covered by Rule 407, but are also probably not
relevant.
Rule 407 applies in cases of both negligence and strict liability.
RULE 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove:




negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if
disputed — proving ownership, control, or the feasibility of precautionary measures.
SETTLEMENTS AND OFFERS TO COMPROMISE (Pg. 106-126)
Rule 408 limits the admissibility of compromises and offers of compromise.
 Encourage people to try to work out their problems short of suing each other.
To be inadmissible, the claim or amount for which the evidence is offered must be in actual
controversy.
 A failure to dispute liability will forfeit the protection of Rule 408. Always make clear
before you begin to negotiate that you are not admitting liability or amount of loss.
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Rule 408 has no application if one side to a “settlement” does not have to give up
anything. Since there is no give-and-take, there is no settlement negotiation.
Settlements with third parties are also covered by Rule 408.
Evidence that is discoverable outside of the settlement context is admissible even if it is
presented during the settlement process.
Some courts have held that, in light of Rule 410, Rule 408 has no application in a criminal case
and evidence of settlement negotiations would be admissible.
RULE 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party —
either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to
accept — a valuable consideration in compromising or attempting to compromise the
claim; and
(2) conduct or a statement made during compromise negotiations about the claim —
except when offered in a criminal case and when the negotiations related to a claim by a
public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct
a criminal investigation or prosecution.
MEDICAL EXPENSES (Pg. 127-134)
Rule 409 makes inadmissible paying or offering to pay the medical expenses resulting from an
injury to prove liability for the injury.
 Rule 409 will still allow the use of such payments where the issue is not liability. In the
damages phase, where liability has been conceded or has already been found, this type of
evidence may be allowed.
 Rule does not bar statements made in connection with medical payments.
RULE 409. Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury.
LIABILITY INSURANCE (Pg. 150-156)
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Rule 411 excludes evidence that one was insured or was not insured when the issue is whether
that person acted negligently or in a wrongful manner.
 Another purpose for which evidence of liability insurance is offered must actually be in
controversy.
RULE 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether
the person acted negligently or otherwise wrongfully. But the court may admit this evidence for
another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or
control.
CRIMINAL PLEA BARGAINING (Pg. 135-149)
Rule 410 makes certain guilty pleas, plea discussions, and related statements inadmissible in
either civil or criminal cases regardless of the purpose for which the statement is offered.
For a statement made in discussions to be excluded under Rule 410, the following must be
proven:
 Defendant must have intent to negotiate plea at the time of the discussion.
 Expectation of the defendant of negotiating a plea at the time of the discussion must be
objectively reasonable under the totality of the circumstances.
Rule 410 may also bar a defendant’s use of such evidence against the government (not settled).
Rule 410 does not apply if a plea agreement is offered against a third party who is not the
defendant on trial. Thus, a plea agreement between the government and one of its witnesses can
be used to impeach the witness.
RULE 410. Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible
against the defendant who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of
Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a laterwithdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
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(1) in any proceeding in which another statement made during the same plea or plea
discussions has been introduced, if in fairness the statements ought to be considered
together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the
statement under oath, on the record, and with counsel present.
Other exceptions according to Rosen:
 Defendant waived his right to keep such statements out of evidence.
 Statements made to law enforcement officers falsely claiming to have the right to bargain
(law enforcement officers have the right to lie during interrogations).
 Defendant backed out of the plea agreement (different than withdrawing from a plea).
 Defendant has filed a civil suit in which the statements are relevant.
 Statements made while completing a presentence report.
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EXPERT TESTIMONY
(Rules 701, 702, 703, 704, and 705)
LAY OPINIONS (Pg. 743-754)
Rosen refers to this as lay expert opinion. According to Rosen, two types of lay opinion
witnesses exist: (1) unskilled lay witness who testifies based on own observations; and (2) skilled
lay witness who has had experience on enough prior occasions to have knowledge about a
subject or events, and observes that subject or event in the case on trial.
RULE 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one
that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.
Rationally Based on the Witness’s Perception: Requires simply that a lay witness base her
opinion on personal knowledge and that the opinion be one that a reasonable person could reach.
Helpfulness: Lay opinions are admissible only if they “help” the factfinder. Judges are more
likely to admit lay opinions that illuminate a key issue than ones related to a more tangential
matter.
Lay Opinion: Opinions based on everyday observations and experience are lay opinions. Judges
allow lay witnesses to give opinions based on their distinctive experiences, as long as those
events don’t reflect specialized training.
Laying a Foundation: Before a lay witness gives an opinion based on particular knowledge, he
must lay a foundation establishing that he has the information required to form the opinion.
Experts Giving Lay Opinions: Any witness with personal knowledge of an event may give a lay
opinion related to that event. Experts may give lay opinions just like any other witness.
Examples of lay opinion evidence:
 Identification of handwriting.
 Defendant’s understanding of rules or regulations.
 Value of property.
 Loss of profits.
 Identification of a drug based on prior use of the drug.
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

Sanity of defendant.
Former leader of a drug organization opinion, based on content of defendant’s
conversations, giving an opinion about the defendant’s knowledge and intent.
Identification of another.
WHAT SUBJECTS ARE APPROPRIATE FOR EXPERT TESTIMONY? (Pg. 755-772)
Before allowing an expert to testify, the judge must determine that both the field of expertise and
the expert’s application of that knowledge are reliable.
RULE 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Old Rule: Frye v. United States (D.C. Cir. 1923) allowed scientists and other experts to set the
bounds of reliability within their fields. Courts admitted expert testimony based on whether the
expert’s approach had gained “general acceptance” within the field.
 Federal courts now follow Daubert instead but a few state courts still follow Frye.
Daubert v. Merrell Dow Pharmaceuticals (S. Ct. 1993): Court stressed that judges, not a closed
circle of experts, determine the reliability of expert testimony.
 The judge takes a gatekeeper role and uses Rule 104(a) to determine admissibility.
 Trial court must determine that the “reasoning or methodology underlying the testimony
is scientifically valid.”
 Trial court must determine whether that “reasoning or methodology can be applied to the
facts at issue.”
To decide whether testimony is reliable, judges should consider factors such as:
 Whether the theory or technique has been or can be empirically tested.
 Whether it has been subject to peer review and publication.
 The technique’s known or potential error rate.
 The existence of standards controlling the technique’s application.
 Whether the theory or technique has been generally accepted in the relevant scientific
community.
It is not required that, for expert testimony to be reliable, all Daubert factors are satisfied.
Daubert is a flexible test and courts remain open to considering new factors. Other factors courts
have considered include:
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
Whether the expert developed an idiosyncratic approach specifically for the litigated
controversy or as part of a broader program of research.
 The fact that an expert’s courtroom testimony parallels opinions offered in other contexts
may weigh in favor of reliability.
 Whether the expert made an unfounded leap from the scientific theory or technique to a
conclusion not based on the scientific theory or technique.
 How the expert accounted for obvious alternate explanations.
 Whether the expert was as careful in his work as he would have been had there been no
litigation.
 Whether the field of expertise claimed by the expert is known to reach reliable results.
Standard of review after Daubert is abuse of discretion.
In Kumho Tire Co. v. Carmichael (S. Ct. 1999) the Court expanded Daubert to areas outside of
science to include “technical or other special knowledge.”
 In non-scientific areas, the trial court may determine which of the Daubert factors are
relevant to the technical or other special knowledge and trial courts have broad latitude in
making this determination.
Rule 403 analysis in assessing expert evidence:
 Is the evidence reliable, both in its underlying principles and its application to the case?
 Does the evidence fit the case and help the trier of fact?
 Even if the evidence satisfies these requirements, does the danger of unfair prejudice,
confusion, or misleading the jury substantially outweigh the probative value?
Daubert Hearings: Judges frequently evaluate the reliability, fit, and potential prejudice of expert
testimony in a pretrial proceeding known as a Daubert hearing.
 Trial courts may rely on the prior decisions of other courts that have examined a science
or technical expertise to determine whether a hearing is needed to review that science or
technical expertise.
 Thus, only truly new science or technology will result in a Daubert hearing.
The Pathway Through the Expert Evidence Gate:
 Is the evidence based on scientific, technical, or other specialized knowledge? If so, Rule
702 apples.
 The trial judge serves as a gatekeeper, shielding the jury from potentially misleading or
prejudicial evidence. This purpose controls the flexible inquiry outlined below.
 Are the principles and methods supporting the evidence reliable? Use the following
Daubert criteria as guidelines, but look to other factors if appropriate for the field:
o Prior testing of the technique or theory.
o Peer review and publication.
o Error rate.
o Controlling standards.
o General acceptance.
 Has the technique been reliably applied?
 Does the evidence fit the facts of the case? Will it help the factfinder?
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Is the evidence excludable under Rule 403? Do unfair prejudice, confusion, or potential
to mislead jury substantially outweigh probative value?
Expert evidence that clears all hurdles is admissible.
QUALIFYING EXPERTS (Pg. 773-780)
Expert witnesses must be qualified before offering evidence about “scientific, technical, or other
specialized knowledge.”
 Ask questions about the witness’s credentials and qualifications. Ask the judge to certify
the witness as an expert.
 Opposing counsel typically “voir dire” the witness. Opposing counsel tests the witness’s
credentials (demonstrate the limits of the witness’s qualifications to the jury).
 Judge rules on the motion to certify the witness as an expert.
The expert witness may establish her qualifications by pointing to a number of different factors:
knowledge, skill, experience, training, or education.
 Formal education is not necessary to qualify an expert; many experts develop specialized
knowledge in other ways.
BASES OF EXPERT OPINION (Pg. 781-798)
Four special powers of expert witnesses:
 If the expert’s testimony requires knowledge of other trial testimony, the expert may
remain in the courtroom even if the judge excludes other witnesses under Rule 615.
 Experts are the only witnesses who can certify documents as learned treatises under Rule
803(18).
 Experts may state conclusions based on their special training or experience.
 Experts, unlike lay witnesses, do not have to base their opinions exclusively on personal
observations. Instead, experts may rely on a wide range of data, including information—
such as hearsay evidence—that is not admissible in court. Under some circumstances, the
expert may even reveal inadmissible evidence to the jury.
Rule 703:
 The expert need not confine his testimony to matters he personally observed.
 A witness may offer an opinion based on inadmissible evidence, but only if experts in
that field reasonably rely upon that type of information.
 An expert may disclose otherwise inadmissible evidence if the probative value of that
evidence would substantially outweigh its prejudicial effect (Reverse 403 analysis).
o Does not create a new hearsay exception—allows introduction of an out-of-court
statement for a purpose other than to prove the truth of the matter asserted.
Rule 705:
 Allows the expert to offer an opinion without first recounting all of the underlying data.
 Allows an expert to offer an opinion, even if the evidence supporting the opinion is
inadmissible.
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
The opposing party may reveal otherwise inadmissible evidence support an expert’s
testimony on cross-examination.
RULE 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware
of or personally observed. If experts in the particular field would reasonably rely on those kinds
of facts or data in forming an opinion on the subject, they need not be admissible for the opinion
to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the
opinion may disclose them to the jury only if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial effect.
RULE 705. Disclosing the Facts or Data Underlying an Expert’s Opinion
Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it
— without first testifying to the underlying facts or data. But the expert may be required to
disclose those facts or data on cross-examination.
Attendance at Trial: An expert may learn of facts that he bases his opinion on by attending trial
and listening to the testimony of other witnesses. A party may then call the expert to the stand
and ask him to give an opinion based on that other testimony.
Hypothetical Questions: Expert testifies in response to a hypothetical question summarizing the
evidence offered in the case.
 At the time of the questioning, not all of the facts in the hypothetical need be before the
trier of fact.
 Before the close of the party’s case, all of the facts assumed in the hypothetical must be
in the record.
 It is up to the party opposing the expert witness to question assumptions and the factual
basis for the expert’s opinion. The fact that there may be unfounded assumptions or weak
facts only raises a fact question for the jury which opposing counsel is allowed to
explore.
LIMITS ON OPINION AND EXPERT TESTIMONY (Pg. 799-814)
Rule 704(a) relaxes the common-law prohibition against witnesses discussing ultimate issues,
but it does not permit every opinion on an ultimate issue. Judges retain significant authority,
especially under Rules 403 and 701-702, to restrict testimony that treads too far on the
factfinder’s role.
 Rules 701 and 702 require that opinions “help” or are “helpful” to the trier of fact. A
witness may not be helpful if the witness tries too emphatically to steer the jury’s finding
on an ultimate issue.
 Rule 403 restrains testimony that intrudes too far into judicial or jury decisionmaking.
Rule 704(b) restricts expert witnesses from offering opinions on a criminal defendant’s mental
state.
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Courts construe this section quite narrowly and thus the section primarily restricts the
type of words experts use rather than the content of their opinions.
Courts restrain experts from testifying explicitly that the defendant possessed a particular
mental state, but they allow experts to testify that circumstances were consistent with that
state.
Use of hypotheticals going to intent do not violate Rule 704(b).
RULE 704. Opinion on an Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just
because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact alone.
Legal Conclusions: Although Rule 704 allows witnesses to testify about ultimate issues, most
judges prefer witnesses to avoid legal terms like “negligent” or “guilty beyond a reasonable
doubt.” These phrases threaten to usurp the judge’s authority to articulate the legal standards
governing the case, exceed the witness’s expertise, and confuse the jury. Most judges, therefore,
rule that testimony expressing legal conclusions either is not helpful to the jury or violates Rule
403.
Probabilities: Many experts quantify the likelihood of an occurrence by citing probabilities.
Some testimony referring to probabilities, however, crosses the line and introduces conclusions
that courts find unhelpful or prejudicial.
Polygraphs: Judges remain reluctant to admit polygraph evidence in court. Some see polygraphs
as intruding on the jury’s right to assess a witness’s credibility. Also concerns about the accuracy
of polygraphs.
Testimony About Eyewitness Accounts: Courts have been growing more tolerant of expert
testimony discussing the reliability of eyewitnesses.
COURT-APPOINTED EXPERTS (Pg. 815-819)
Rule 706 establishes a procedure for court-appointed experts. Judges rarely exercise their power
to appoint their own expert witnesses, but new uses for court-appointed experts may be
emerging.
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PRIVILEGE
(Rules 501 and 502)
INTRODUCTION TO PRIVILEGES (Pg. 820-828)
There is a presumption against the existence of a privilege and the proponent of the privilege has
the burden of proving his right to the privilege/each element of the privilege.
A few privileges are absolute, meaning a person cannot be compelled to testify to anything and it
is virtually impossible to pierce the privilege. Most privileges are qualified, meaning a person
must use it selectively and the privilege may be overcome.
In any claim of privilege, consider:
 Does the claimant have standing to assert the privilege?
 Can the claimant prove all of the elements of the privilege?
o The court may review, in camera, the information claimed to be privileged to aid
in determining whether the privilege exists.
 Has there been any improper disclosure to the privileged information?
 Has there been a waiver of the privilege?
 Are there exceptions to the privilege?
Rule 501 governs privileges and privileges are generally found by referring to the common law
of the federal jurisdiction in which the action arises.
 Whether the privilege will apply in the case depends on the jurisdiction in which the
action is brought.
 In a civil action, where state law supplies the rule of decision for an element or a defense,
the application of a privilege will be governed by the law of that state.
RULE 501. Privilege in General
The common law — as interpreted by United States courts in the light of reason and experience
— governs a claim of privilege unless any of the following provides otherwise:



the United States Constitution;
a federal statute; or
rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law
supplies the rule of decision.
ATTORNEY-CLIENT PRIVILEGE (Pg. 829-850)
The attorney-client privilege exists to promote the ability of clients to freely give to their counsel
truthful information to aid counsel in giving sound legal advice.
While the privilege will survive the death of the client, it is to be narrowly construed.
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Only the client has standing to assert the attorney-client privilege, but it must be asserted by
counsel to give the client the opportunity to enter and protect the privilege.
 Only the client may waive the privilege.
Professor Wigmore’s six elements of the attorney-client privilege:
 Legal advice of any kind is sought.
o Advice sought must be legal in nature. Asking for business or other advice of a
lawyer does not protect the communication.
o Must be clear evidence that the person went to the lawyer to seek legal advice.
 Look to what the person told the lawyer.
 Look to how the lawyer treated the contact with the person.
o A subjective belief on the party of the person that the communication will be
privileged is not sufficient to show that the person sought legal advice.
o Courts will review all of the facts surrounding the relationship to help determine
whether the parties acted in a manner consistent with the intent to maintain an
attorney/client privilege.
o Communications with a lawyer to help the lawyer determine whether he will take
the person as a client are privileged even though a formal attorney-client
relationship did not exist at the time of the communication.
o Payment of a fee to a lawyer does not necessarily prove the existence of the
attorney-client relationship.
 From a legal advisor in his capacity as such.
o Extended to those in the employ of the attorney who act on his behalf with the
client.
o Extends to people the “client” reasonably believed to be lawyers, even when that
belief was later shown to be incorrect.
o A lawyer acting in some other capacity than that of lawyer is not covered.
 The communications relate to that purpose.
o Only those disclosures necessary to obtain informed legal advice which might not
have been made absent the privilege are protected.
o If the communication includes data which pre-existed the attorney-client
relationship that data is not protected and the client must identify which data
should be excluded from the privilege.
o Telling others of the underlying facts disclosed to counsel is not a waiver of the
privilege, however, telling others of the communications with counsel will be a
waiver.
 The communications are made in confidence.
o Must be intent to keep the communications secret.
o Presence of third parties who are not necessary to the communication will defeat
the privilege.
o If the parties understand that the lawyer will communicate the information to
others in the future, then there is no privilege.
 The communications are made by the client.
o Communications by the lawyer to the client are also privileged, if they reveal
information received by the client.
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o In the corporate setting, any present corporate employee will be covered as if he
or she were the corporation if:
 Communications were made by a corporate employee;
 Communications were made to counsel for the corporation who was then
acting in that capacity;
 Communications concerned matters within the scope of the employee’s
corporate duties;
 Communications were made at the direction of the employee’s corporate
supervisors;
 Communications were made to secure legal advice from the counsel; and
 Communications were confidential when made and were kept so by the
corporation.
The communications are at the client’s instance permanently protected.
o Only the client may choose to waive the privilege. A lawyer may not assert the
privilege if the client chooses to waive.
o Any disclosure that is authorized by the client may act as a waiver of the
privilege.
o In the corporate setting, waiver of the corporation’s privilege must be done to
benefit the corporation and not the officer or employee making the choice. This
also allows the corporation to waive privilege to the detriment of employees or
officers, who have no right to object.
o Whether a client may selectively waive portions of the privilege depends on the
jurisdiction.
o Some courts also find a waiver when the client has inadvertently allowed
disclosure through insufficient security.
o An advice of counsel defense acts as a waiver of privilege.
o When a join defense agreement exists, all client parties to the agreement must
agree to the disclosure for it to be a waiver of the privilege.
Underlying factual data, communicated to counsel, does not become privileged and thus is still
subject to discovery.
An attorney may be compelled to identify a client or give details of the fee agreement.
 But if disclosure will also reveal a confidential disclosure, then the privilege will apply.
The crime-fraud exception to the privilege states that the privilege cannot be used to protect
ongoing or prospective illegal conduct.
 The court may review the communications to help in determining whether the crimefraud exception applies.
A party who loses a claim of privilege cannot raise the issue until appeal after the case has been
tried to a conclusion.
Work Product Privilege:
 Both the attorney and the client have standing to claim protection of the work product
privilege.
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Two types of work product:
o Opinion work product reflects the mental process of the lawyer.
o Ordinary work product includes the raw data received to form opinions.
Privilege protects only things done in anticipation of litigation.
o Test is met if litigation is not necessarily imminent, as long as the primary
motivating purpose behind the creation of the document was to aid in possible
future litigation.
o Protects material prepared for any litigation or trial as long as they were prepared
by or for a party to the subsequent litigation.
o If the document was prepared because of the possibility of litigation, it is covered,
even if it could also be used to guide a business decision.
There can be no work product privilege without the attorney-client privilege.
The privilege covers facts developed by an attorney in preparation of the case and
opinions he has formed about the litigation, even if he has reduced the facts and opinions
to writing.
o An attorney’s notes of interviews are opinion work product.
Work done by agents of the lawyer may be covered.
Crime-fraud exception can apply to the work product privilege, but this depends on the
type of work product:
o If the work product is the opinion and mental impressions of the lawyer, then it
can rarely be discovered. The privilege is overcome if the opinions relate to
criminal conduct by the lawyer. If the work product relates to ongoing criminal
conduct of the client, and counsel is unaware of the criminal conduct, then the
privilege survives.
o If the work product is data used to help in formation of the opinion, then it is
afforded much less protection.
o If one of the parties (lawyer/client) is not involved in the crime, that party may not
successfully assert the work product privilege, even though the guilty party
cannot.
Waiver rules vary. A waiver of the attorney-client privilege may not waive work
product, and the attorney also owns the work product privilege but a client may have a
sufficient interest to raise the issue.
RULE 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication
or information covered by the attorney-client privilege or work-product protection.
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency;
Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal
office or agency and waives the attorney-client privilege or work-product protection, the
waiver extends to an undisclosed communication or information in a federal or state
proceeding only if:
(1) the waiver is intentional;
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(2) the disclosed and undisclosed communications or information concern the
same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or
agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent
disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if
applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).
(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state
proceeding and is not the subject of a state-court order concerning waiver, the disclosure
does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal
proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling Effect of a Court Order. A federal court may order that the privilege or
protection is not waived by disclosure connected with the litigation pending before the
court — in which event the disclosure is also not a waiver in any other federal or state
proceeding.
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure
in a federal proceeding is binding only on the parties to the agreement, unless it is
incorporated into a court order.
(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule
applies to state proceedings and to federal court-annexed and federal court-mandated
arbitration proceedings, in the circumstances set out in the rule. And notwithstanding
Rule 501, this rule applies even if state law provides the rule of decision.
(g) Definitions. In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides
for confidential attorney-client communications; and
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(2) “work-product protection” means the protection that applicable law provides
for tangible material (or its intangible equivalent) prepared in anticipation of
litigation or for trial.
OTHER PRIVILEGES (Pg. 851-867)
Fifth Amendment Privilege: A valid invocation of the Fifth Amendment privilege may be made
during a criminal or civil proceeding if the answer to the question may tend to incriminate or be a
link in the chain of incrimination.
 However, if the privilege is not asserted, it may be lost forever.
 A waiver of the Fifth Amendment privilege worked against the person who waived
forever. Garner v. United States (S. Ct. 1976).
 A witness who had previously been granted immunity by the government in a criminal
proceeding, and who had testified, was allowed to assert the Fifth Amendment privilege
in a subsequent civil proceeding because, even though the statements would be identical
to those in the immunized testimony, the civil testimony could be used against him in a
later criminal proceeding. Pillsbury Co. v. Conboy (S. Ct. 1983).
 As to the scope of the waiver, most courts have considered whether a person who has
chosen to testify on direct may refuse to answer questions in cross-examination based on
the Fifth Amendment privilege. Those courts have found that such a waiver from
testimony does not work as a complete waiver of the privilege. Instead, the waiver only
goes to cross-examination questions that relate to the subject matter of the directexamination.
Marital Privilege:
 Confidential Communications Privilege: Allows either spouse to block testimony of a
spouse about confidential communications made during the life of the marriage in any
case.
o Only applies to communications made in confidence between the spouses during
a valid marriage.
o Qualified privilege and must be invoked selectively depending on the nature of
the question.
o Only applies to communications, whether verbal or nonverbal.
o Presumes the confidentiality of communications made during a valid marriage.
Thus, once a valid marriage is proven, the burden shifts to the person seeking the
testimony.
o Survives the termination of the marriage.
o May not apply where the communications occur between permanently separated
spouses, even though they are technically made within a valid marriage.
o Same exclusions that apply to the adverse spousal testimony privilege apply here.
 Adverse Spousal Testimony Privilege: Allows a spouse called to testify in a criminal
case to testify or refuse to testify.
o Absolute privilege that applies to all testimony against a spouse and includes
testimony on non-confidential matters and matters that occurred prior to the
marriage.
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o Must be asserted during a marriage and may not be asserted after the marriage is
terminated.
o May not be asserted where the marriage between the defendant and the testifying
spouse is in fact moribund, though legally still valid.
o Validity of the marriage is a matter of state law.
o Marriage may not support the invocation of the privilege if the judge determines
the marriage was fraudulently entered into.
o Marriage does not have to be happy or successful to allow the invocation of the
privilege.
o Marriage entered into after the crime is completed will still bar testimony under
this privilege.
o Privilege does not apply where one spouse is charged with a crime against the
other or with a crime against their children.
o Some federal courts have also made an exception when both spouses participate
in the crime, but many states do not recognize this exception.
Physician-Patient Privilege: Covers confidential communications made by the patient to the
physician (or his agent) to obtain medical treatment.
 Not a common law privilege, so does not exist under Rule 501.
 Most states do recognize this privilege.
 Patient is the holder of the privilege, and thus is the person with standing to assert the
privilege.
Priest-Penitent Privilege: Protects confidential communications between a member of the
clergy and a person seeking spiritual advice from the clergy member in his or her capacity as
such.
 Generally, the person seeking the advice is the holder of the privilege.
 Privilege may be waived by a failure to assert it.
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IMPEACHMENT
(Rules 607, 613, 609, and 803(21))
The most common forms of impeachment are not governed by any specific Rule, instead they
have arisen under the common law.
Do not confuse the rules on character impeachment, which exclude extrinsic evidence, with the
more common impeachment that does allow proof by extrinsic evidence.
Impeachment is the use of evidence to attempt to convince the trier of fact that a witness is not
believable as to a specific fact to which the witness has testified, or as to every fact to which the
witness has testified.
 Impeachment may occur only after the witness to be impeached has testified.
 Impeachment may be done with evidence that is intrinsic or extrinsic.
o If you use extrinsic evidence to impeach, it is not admitted as substantive proof of
a material fact, Instead, it is admitted for the limited purpose of helping the jury to
assess the credibility of the witness.
 Impeachment of a witness involves evidence that calls into question the witness’s
veracity. Such evidence is not admitted as substantive evidence, but instead as evidence
only affecting credibility. A Rule 105 limiting instruction is proper.
As one generally does not introduce evidence in impeachment, the only limitation on questions
(asides from Rule 403) is that the questioner has a good faith belief for the basis of the question.
RULE 607. Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness’s credibility.
IMPEACHMENT PURSUANT TO COMMON LAW
Impeachment by Contradiction: Showing that the witness lied on the stand about a fact at
issue. Goes to specific instances of a witness’s testimony that can be contradicted by other
evidence.
 In impeachment by contradiction the witness is either confronted with contrary proof to
try to have him retract his testimony, or contrary evidence presented is argued to the jury
to impeach the witness.
 Impeachment by contradiction is permitted by Rule 607 and limited by Rules 402, 403,
and 613, but is otherwise not governed by the limitations of any other Rule.
o While there may be overlap with impeachment authorized under Rules 608 and
609, impeachment by contradiction is an independent meanings of impeaching a
witness.
 Goes to specific instances a witness’ testimony that can be contradicted by other evidence
(unlike Rule 608(b) that focuses on witness’s character for untruthfulness).
o If the witness brings up the falsehood on direct, or it arises from the direct, it is
impeachment by contradiction.
o If the falsehood is completely outside of the direct, then Rule 608(b) will control.
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While impeachment may go to a collateral matter, if it is impeachment by contradiction, then the
extrinsic evidence to be introduced may not go to a collateral matter.
 A matter is considered collateral if the matter itself it not relevant in the litigation to
establish a fact of consequence, i.e., not relevant for a purpose other than mere
contradiction of the in-court testimony of the witness.
Extrinsic evidence to impeach is only admissible for a contradiction where the prior testimony
being contradicted was itself material to the case at hand (non-collateral).
 Extrinsic evidence to disprove a fact testified to by a witness is admissible when it
satisfies the Rule 403 balancing test and is not barred by any other Rule.
 Extrinsic evidence used to impeach must be independently admissible.
Intrinsic evidence is frequently used to impeach, although it may not have been introduced into
evidence at the time it is used to impeach.
United States v. Havens (S. Ct. 1980): “It is essential … to the proper functioning of the
adversary system that when a defendant takes the stand, the government be permitted proper and
effective cross-examination in an attempt to elicit the truth. The defendant’s obligation to testify
truthfully is fully binding on him when he is cross-examined.”
 Some courts have rejected Havens and ruled that extrinsic evidence is allowed only when
the witness has made the false statement in their direct testimony.
Impeachment pursuant to Memory and Perception: If a person has an impaired memory or
perception issues, the first attempt should be to challenge their competency as a witness. If that
does not succeed, impeachment would try to show the jury that the witness has an impaired
memory generally or had perception issues as to the facts of the case. This evidence would affect
how much weight the jury gives to the witness’s testimony.
 When questioning tries to show that a person could not perceive what they claim, the
questioner tries to show the jury that witness had impaired perception generally or as to
the facts of the case. This includes:
o Ability to see, hear, smell, etc. generally.
o Same, but because of some outside factor (e.g., a closed door kept the witness
from seeing in the room or the witness was not wearing glasses when they were
needed).
Impeachment pursuant to Bias, Interest, or Improper Motive: Rule 611(b) allows crossexamination for prejudice, however there is no specific rule which governs examination for bias,
interest, or improper motive. The Supreme Court has held this form of examination proper.
 Admissibility is limited only by the relevance standard in Rule 402 and by Rule 403.
 Because bias is not a collateral issue, it is permissible for extrinsic evidence to be
introduced.
o The foundation for the extrinsic evidence comes from the questions asked of the
witness on cross-examination. The questioner cannot exceed the scope of what
was asked of the witness on cross-examination.
 Types of evidence covered by bias, interest, or improper motive include: (1) family
relationships; (2) marital relationships; (3) sexual relationships; (4) employment; (5)
business relationships; (6) membership in organizations; (7) fear; (8) hostility; (9)
gain/loss from outcome of case or a related case (financial, immunity, plea agreement;
and (10) reward based on results of case.
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Impeachment pursuant to Illegally Obtained Evidence:
 Statements taken in violation of Miranda rights, including ignoring the right to counsel
may be used to impeach a defendant who testifies in a criminal case.
o Same is not true for when the statement is coerced, including by a grant of
immunity.
 Statements made at pre-trial hearings may be used to impeach.
 Illegally-seized evidence that contradicts a statement made in trial may be used to
impeach the defendant in a criminal case.
o Same is not true for a witness who is not the defendant.
Impeachment pursuant to Corruption: Courts allow the opponent to show a witness has been
bribed or coerced in some manner to say something that is not true.
Impeachment pursuant to Silence: If a reasonable person in the witness’s circumstances would
have made some denial or statement, then the failure to do so may contradict the story told at
trial by the witness.
 E.g., in a criminal case where the defendant puts friends on the stand to say they know
the defendant did not commit the crime, it is proper to question them to which law
enforcement officers they reported this mistake. Their failure to report the mistake is
silence used to impeach them.
 Silence of a criminal defendant may be used to impeach him if:
o It occurs before the arrest stage of proceedings.
o It occurs after arrest but before Miranda rights have been given or any
questioning by the law enforcement officers.
o It occurs before arrest and being advised of rights, but under questioning by
officers the defendant does not expressly assert his right to remain silent, but
simply refuses to answer one or more questions.
 The silence of a criminal defendant (or any witness) may not be used to impeach him if it
occurs after the defendant has been advised of his Miranda rights.
IMPEACHMENT PRUSUANT TO THE RULES
Impeachment pursuant to Prior Convictions: In deciding whether to allow such evidence,
courts should consider: (1) the impeachment value of the prior crime; (2) the point in time of the
conviction and the defendant’s subsequent history; (3) the similarity between the past crime and
the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the
credibility issue.
 Generally, juvenile convictions may not be used.
 Rule 609(b) generally opposes a ten year age limit on a 609(a)(1) or (a)(2) conviction.
o The time begins running at the time of conviction, or at the time of release from
incarceration under the conviction, whichever is later.
o The release from incarceration time only considers the release from the last
imprisonment under the conviction.
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o If one is put on probation and violates the probation and is sent back to prison, the
release from incarceration date is the release after the new sentence imposed
because of the violation.
RULE 609. Impeachment by Evidence of a Criminal Conviction
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year [felony], the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in
which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant;
and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court
can readily determine that establishing the elements of the crime required proving — or
the witness’s admitting — a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10
years have passed since the witness’s conviction or release from confinement for it, whichever is
later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it
so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction
is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding that the person has been
rehabilitated, and the person has not been convicted of a later crime punishable by death
or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule
only if:
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(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s
credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is
pending. Evidence of the pendency is also admissible.
Impeachment pursuant to Prior Inconsistent Statements: Prior statement is used to show that
the witness contradicted himself at some prior time based on prior statements made by the
witness.
 While prior inconsistent statements may be a form of impeachment by contradiction,
Rule 613(b) governs their use in impeachment.
 May only use a statement used by a witness, not some third party’s statement.
 Witness’s statement does not have to be under oath or recorded to be used.
 Except when allowed by Rule 801(d)(1)(a), the prior statement may not be admitted into
evidence. It is not substantive evidence, but merely goes to the credibility of the witness
(Rule 105 limiting instruction).
 To be an inconsistent statement, the statement need not flatly contradict the trial
testimony. It is enough if the prior statement is different than the trial testimony. An
inconsistent statement may be: (1) silence or omission of a fact; (2) prior lack of
knowledge; or (3) current lack of memory.
 No Rule governs prior inconsistent conduct and it is generally admissible.
 This Rule does allow a party to impeach its own witness with a prior inconsistent
statement, but care must be taken that the Rule is not used as a trick to admit otherwise
inadmissible evidence.
RULE 613. Witness’s Prior Statement
(a) Showing or Disclosing the Statement During Examination. When examining a witness
about the witness’s prior statement, a party need not show it or disclose its contents to the
witness. But the party must, on request, show it or disclose its contents to an adverse party’s
attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s
prior inconsistent statement is admissible only if the witness is given an opportunity to explain or
deny the statement and an adverse party is given an opportunity to examine the witness about it,
or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement
under Rule 801(d)(2).
Impeachment pursuant to Special Cases:
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Pursuant to Rule 803(18), experts may be impeached by learned publications. Experts are
allowed to testify based on what they have learned in a treatise. Thus, they may also be
questioned about such information that contradicts what they have said.
o An exception to the hearsay rules.
o Statement from the treatise are not admissible as evidence, only to impeach
expert.
o Questioner must establish the authenticity of the treatise by having the witness
acknowledge the document as authoritative in the field.
If a hearsay statement of a declarant who is not testifying is allowed on direct, then the
witness (who is not the declarant) may be cross-examined with any evidence that would
have been admissible against the declarant. Rule 806.
o Fairness rule within the hearsay rules.
o Rule 806 applies to both statements that are exceptions to the hearsay rule and to:
 Admissions of a party opponent made by a person authorized by the party
to make the statement.
 Admissions of a party opponent made by a party’s agent concerning a
matter within the scope of the agency or employment during the
relationship.
 Admissions of a party opponent made by a co-conspirator during and in
furtherance of the conspiracy.
Inconsistent statements of the declarant may be admitted without giving the declarant a
chance to see or explain them.
Under Rule 806, if the party against whom the hearsay statement has been offered
chooses to call the declarant witness in their case, they are allowed to cross-examine the
declarant.
Impeachment pursuant to Character: Rule 404(a) governs character testimony. Even in
impeachment, evidence of character or a character trait is not admissible to prove action in
conformity on a particular occasion.
Impeachment under Rule 608(b): Allows the opponent to question the character witness about
specific acts. This is done to test their knowledge base, or the community’s knowledge base.
 Does not allow the opponent to introduce extrinsic evidence of the specific acts.
o This is a major difference between character impeachment and impeachment by
contradiction.
 The “absolute prohibition on extrinsic evidence applies only when the sole reason for
proffering that evidence is to attack or support a witness’ character for truthfulness.”
RULE 608. A Witness’s Character for Truthfulness or Untruthfulness
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic
evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court may, on cross-examination, allow
them to be inquired into if they are probative of the character for truthfulness or untruthfulness
of:
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(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination
for testimony that relates only to the witness’s character for truthfulness.
Impeachment under Rule 404(a)(3): Rule states that in all cases where character evidence is
used, Rules 607, 608, and 609 govern the introduction of character evidence to impeach a
witness.
Impeachment under Rule 405(a): Rule allows the opponent to impeach a party’s character
witness by inquiry into relevant specific acts of conduct on cross. As in Rule 608, the objective is
to show the jury that the character witness lacks the proper factual basis to support the character
evidence.
Rule 608 deals with the use of specific acts of misconduct used to attack credibility. Rule 405(a)
governs the use of specific acts of misconduct to attack a character witness’s testimony. Rule
402 governs if the evidence is being introduced to show bias.
 Whenever specific acts are used to impeach a character witness, questions must be
limited to the specific act and not to consequences of the act like arrest or indictment.
 Questioner must have good faith basis for asking the question about the specific fact.
 Character is limited to subjects like honesty, temperance, and peacefulness. A witness’s
memory, mental capacity, slowness to answer, forgetfulness, or poor ability to express
oneself are not character and are proper cross-examination to establish credibility.
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